Exceptions. Notwithstanding anything in Section 9.1(a), Borrower shall not be required to indemnify, protect, defend or hold harmless any Indemnitee pursuant to Section 9.1(a) against any Expense of such Indemnitee: (1) for any Taxes or a loss of Tax Benefit, whether or not Borrower is required to indemnify therefor pursuant to Section 9.3; (2) to the extent attributable to any Transfer (voluntary or involuntary) by or on behalf of such Indemnitee of any Equipment Note, Commitment or interest therein, except for reasonable out-of-pocket costs and expenses incurred as a result of any such Transfer requested in writing by Borrower or made or effected as required by or pursuant to the terms of the Operative Agreements or made or effected in connection with or pursuant to the exercise of remedies under any Operative Agreement; (3) to the extent attributable to the gross negligence or willful misconduct of such Indemnitee or any “Related Indemnitee” (as defined at the end of this Section 9.1(b)) (other than gross negligence or willful misconduct imputed to such Person solely by reason of its interest in the Aircraft or being party to any Operative Agreement); (4) to the extent attributable to the incorrectness or breach of any representation or warranty of such Indemnitee or any Related Indemnitee, contained in or made pursuant to any Operative Agreement; (5) to the extent attributable to the failure by such Indemnitee or any Related Indemnitee to perform or observe any express agreement, covenant, or condition on its part to be performed or observed in any Operative Agreement; (6) to the extent attributable to the offer or sale by such Indemnitee or any Related Indemnitee of any interest in the Equipment Notes or its Commitment in violation of the registration requirements of the Securities Act or in violation of the registration requirements of any applicable state or foreign securities Laws (other than any thereof caused by acts or omissions of Borrower); (7) to the extent attributable to Security Agent’s failure to distribute funds received and distributable by it in accordance with the Operative Agreements; (8) other than during the existence of an Event of Default, to the extent attributable to the authorization or giving or withholding of any future amendments, supplements, waivers, or consents with respect to any Operative Agreement, other than any requested by Borrower or required by or made pursuant to the terms of the Operative Agreements (unless such requirement results from the actions of an Indemnitee not required by or made pursuant to the Operative Agreements); (9) to the extent attributable to any amount which any Indemnitee expressly agrees to pay or such Indemnitee expressly agrees shall not be paid by or be reimbursed by Borrower; (10) to the extent that it is an ordinary and usual operating or overhead expense; (11) for any Lien attributable to such Indemnitee or any Related Indemnitee that Borrower is not obligated to discharge under the Operative Agreements; (12) if another provision of an Operative Agreement specifies the extent of Borrower’s responsibility or obligation with respect to such Expense, to the extent arising from a cause other than Borrower’s failure to comply with such specified responsibility or obligation; or (13) to the extent imposed on an Indemnitee as a result of any non-exempt “prohibited transaction” under 406(a) of ERISA or Section 4975(c)(1) of the Code caused by such Indemnitee. For purposes of this Section 9.1, a Person shall be considered a “Related Indemnitee” of an Indemnitee if that Person is an Affiliate or employer of such Indemnitee, a director, officer, employee, agent, or servant of such Indemnitee or any such Affiliate.
Appears in 6 contracts
Sources: Loan Agreement (Airtran Holdings Inc), Loan Agreement (Airtran Holdings Inc), Loan Agreement (Airtran Holdings Inc)
Exceptions. Notwithstanding anything contained in Section 9.1(a)8.1.1, Borrower Owner shall not be required to indemnify, protect, defend or and hold harmless any Indemnitee pursuant to Section 9.1(a) against 8.1.1 in respect of any Expense of such Indemnitee:
(1a) for For any Taxes or a loss of Tax Benefitbenefit, whether or not Borrower Owner is required to indemnify therefor pursuant to Section 9.38.3;
(2b) Except to the extent attributable to acts or events occurring prior thereto, acts or events (other than acts or events related to the performance by Owner of its obligations pursuant to the terms of the Operative Agreements) that occur after the Trust Indenture is required to be terminated in accordance with Section 11.01 of the Trust Indenture; provided, that nothing in this clause (b) shall be deemed to exclude or limit any claim that any Indemnitee may have under applicable Law by reason of an Event of Default or for damages from Owner for breach of Owner's covenants contained in the Operative Agreements or to release Owner from any of its obligations under the Operative Agreements that expressly provide for performance after termination of the Trust Indenture;
(c) To the extent attributable to any Transfer (voluntary or involuntary) by or on behalf of such Indemnitee of any Equipment Note, Commitment Note or interest therein, except for reasonable out-of-pocket costs and expenses incurred as a result of any such Transfer requested in writing by Borrower or made or effected as required by or pursuant to the terms of the Operative Agreements or made or effected in connection with or pursuant to the exercise of remedies under any Operative Agreement;
(3d) to [Intentionally Omitted]
(e) To the extent attributable to the gross negligence or willful misconduct of such Indemnitee or any “Related Indemnitee” related Indemnitee (as defined at the end of this Section 9.1(b)below) (other than gross negligence or willful misconduct imputed to such Person solely person by reason of its interest in the Aircraft or being party to any Operative Agreement);
(4f) to [Intentionally Omitted]
(g) To the extent attributable to the incorrectness or breach of any representation or warranty of such Indemnitee or any Related Indemnitee, related Indemnitee contained in or made pursuant to any Operative Agreement or any Pass Through Agreement;
(5h) to To the extent attributable to the failure by such Indemnitee or any Related related Indemnitee to perform or observe any express agreement, covenant, covenant or condition on its part to be performed or observed in any Operative Agreement or any Pass Through Agreement;
(6i) to To the extent attributable to the offer or sale by such Indemnitee or any Related related Indemnitee of any interest in the Aircraft, the Equipment Notes Notes, the Pass Through Certificates, or its Commitment any similar interest, in violation of the registration requirements of the Securities Act or in violation of the registration requirements of any other applicable federal, state or foreign securities Laws (other than any thereof caused by acts or omissions of BorrowerOwner);
(7i) With respect to any Indemnitee (other than Mortgagee), to the extent attributable to Security Agent’s the failure of the Mortgagee to distribute funds received and distributable by it in accordance with the Operative Trust Indenture, (ii) with respect to any Indemnitee (other than the Subordination Agent), to the extent attributable to the failure of the Subordination Agent to distribute funds received and distributable by it in accordance with the Intercreditor Agreement, (iii) with respect to any Indemnitee (other than the Pass Through Trustees), to the extent attributable to the failure of a Pass Through Trustee to distribute funds received and distributable by it in accordance with the Pass Through Trust Agreements, (iv) with respect to any Indemnitee (other than the Escrow Agent), to the extent attributable to the failure of the Escrow Agent to pay funds received and payable by it in accordance with any Escrow Agreement, (v) with respect to any Indemnitee (other than the Paying Agent), to the extent attributable to the failure of the Paying Agent to distribute funds received and distributable by it in accordance with any Escrow Agreement, (vi) to the extent attributable to the failure of the Depositary to pay funds payable by it in accordance with any Deposit Agreement, (vii) with respect to Mortgagee, to the extent attributable to the negligence or willful misconduct of Mortgagee in the distribution of funds received and distributable by it in accordance with the Trust Indenture, (viii) with respect to the Subordination Agent, to the extent attributable to the negligence or willful misconduct of the Subordination Agent in the distribution of funds received and distributable by it in accordance with the Intercreditor Agreement, (ix) with respect to the Pass Through Trustees, to the extent attributable to the negligence or willful misconduct of a Pass Through Trustee in the distribution of funds received and distributable by it in accordance with the Pass Through Trust Agreements, (x) with respect to the Escrow Agent, to the extent attributable to the negligence or willful misconduct of the Escrow Agent in the payment of funds received and payable by it in accordance with any Escrow Agreement and (xi) with respect to the Paying Agent, to the extent attributable to the negligence or willful misconduct of the Paying Agent in the distribution of funds received and distributable by it in accordance with any Escrow Agreement;
(8) other k) Other than during the existence continuation of an Event of Default, to the extent attributable to the authorization or giving or withholding of any future amendments, supplements, waivers, waivers or consents with respect to any Operative Agreement, Agreement or Pass Through Agreement other than any such as have been requested by Borrower Owner or as are required by or made pursuant to the terms of the Operative Agreements or Pass Through Agreements (unless such requirement results from the actions of an Indemnitee not required by or made pursuant to the Operative Agreements or the Pass Through Agreements);
(9l) to To the extent attributable to any amount which any Indemnitee expressly agrees to pay or such Indemnitee expressly agrees shall not be paid by or be reimbursed by BorrowerOwner;
(10m) to To the extent that it is an ordinary and usual operating or overhead expense;
(11n) for [Intentionally Omitted]
(o) For any Lien attributable to such Indemnitee or any Related Indemnitee that Borrower is not obligated to discharge under the Operative Agreementsrelated Indemnitee;
(12p) if If another provision of an Operative Agreement or a Pass Through Agreement specifies the extent of Borrower’s Owner's responsibility or obligation with respect to such Expense, to the extent arising from a cause other than Borrower’s failure of Owner to comply with such specified responsibility or obligation; or
(13q) to To the extent imposed on incurred by or asserted against an Indemnitee as a result of any non-exempt “"prohibited transaction” under 406(a) ", within the meaning of Section 406 of ERISA or Section 4975(c)(1) of the Code caused by such IndemniteeCode. For purposes of this Section 9.18.1, a Person shall be considered a “Related Indemnitee” of "related" Indemnitee with respect to an Indemnitee if that such Person is an Affiliate or employer of such Indemnitee, a director, officer, employee, agent, or servant of such Indemnitee or any such AffiliateAffiliate or a successor or permitted assignee of any of the foregoing.
Appears in 6 contracts
Sources: Note Purchase Agreement (United Airlines, Inc.), Note Purchase Agreement (United Airlines, Inc.), Note Purchase Agreement (United Airlines, Inc.)
Exceptions. Notwithstanding anything in Section 9.1(a)the foregoing, Borrower shall a Stockholder will not be required to indemnifycomply with Subsection 3.2 above in connection with any proposed Sale of the Company (the “Proposed Sale”), protect, defend or hold harmless any Indemnitee pursuant to Section 9.1(a) against any Expense of such Indemniteeunless:
(1a) for any Taxes representations and warranties to be made by such Stockholder in connection with the Proposed Sale are limited to representations and warranties related to authority, ownership and the ability to convey title to such Shares, including, but not limited to, representations and warranties that (i) the Stockholder holds all right, title and interest in and to the Shares such Stockholder purports to hold, free and clear of all liens and encumbrances, (ii) the obligations of the Stockholder in connection with the transaction have been duly authorized, if applicable, (iii) the documents to be entered into by the Stockholder have been duly executed by the Stockholder and delivered to the acquirer and are enforceable against the Stockholder in accordance with their respective terms; and (iv) neither the execution and delivery of documents to be entered into in connection with the transaction, nor the performance of the Stockholder’s obligations thereunder, will cause a breach or a loss violation of Tax Benefitthe terms of any agreement, whether law or not Borrower is required to indemnify therefor pursuant to Section 9.3judgment, order or decree of any court or governmental agency;
(2b) to the extent attributable to any Transfer (voluntary or involuntary) by or on behalf of such Indemnitee of any Equipment Note, Commitment or interest therein, except Stockholder shall not be liable for reasonable out-of-pocket costs and expenses incurred as a result of any such Transfer requested in writing by Borrower or made or effected as required by or pursuant to the terms of the Operative Agreements or made or effected in connection with or pursuant to the exercise of remedies under any Operative Agreement;
(3) to the extent attributable to the gross negligence or willful misconduct of such Indemnitee or any “Related Indemnitee” (as defined at the end of this Section 9.1(b)) (other than gross negligence or willful misconduct imputed to such Person solely by reason of its interest in the Aircraft or being party to any Operative Agreement);
(4) to the extent attributable to the incorrectness or breach inaccuracy of any representation or warranty of such Indemnitee or made by any Related Indemniteeother Person in connection with the Proposed Sale, contained in or made pursuant to any Operative Agreement;
other than the Company (5) except to the extent attributable that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the failure Company as well as breach by such Indemnitee or any Related Indemnitee to perform or observe any express agreement, covenant, or condition on its part to be performed or observed in any Operative Agreement;
(6) to the extent attributable to the offer or sale by such Indemnitee or any Related Indemnitee stockholder of any interest in the Equipment Notes or its Commitment in violation of the registration requirements of the Securities Act or in violation of the registration requirements of any applicable state or foreign securities Laws (other than any thereof caused identical representations, warranties and covenants provided by acts or omissions of Borrowerall stockholders);
(7c) the liability for indemnification, if any, of such Stockholder in the Proposed Sale and for the inaccuracy of any representations and warranties made by the Company or its Stockholders in connection with such Proposed Sale, is several and not joint with any other Person (except to the extent attributable that funds may be paid out of an escrow established to Security Agent’s failure cover breach of representations, warranties and covenants of the Company as well as breach by any stockholder of any of identical representations, warranties and covenants provided by all stockholders), and subject to distribute funds received the provisions of the Restated Certificate related to the allocation of the escrow, is pro rata in proportion to, and distributable by it does not exceed, the amount of consideration paid to such Stockholder in connection with such Proposed Sale;
(d) liability shall be limited to such Stockholder's applicable share (determined based on the respective proceeds payable to each Stockholder in connection with such Proposed Sale in accordance with the Operative Agreements;
(8) other than during provisions of the existence Restated Certificate) of an Event a negotiated aggregate indemnification amount that applies equally to all Stockholders but that in no event exceeds the amount of Defaultconsideration otherwise payable to such Stockholder in connection with such Proposed Sale, to the extent attributable to the authorization or giving or withholding of any future amendments, supplements, waivers, or consents except with respect to any Operative Agreementclaims related to fraud by such Stockholder, other than any requested by Borrower or required by or made pursuant the liability for which need not be limited as to such Stockholder; and
(e) upon the terms consummation of the Operative Agreements Proposed Sale (unless such requirement results from the actions i) each holder of an Indemnitee not required by each class or made pursuant to the Operative Agreements);
(9) to the extent attributable to any amount which any Indemnitee expressly agrees to pay or such Indemnitee expressly agrees shall not be paid by or be reimbursed by Borrower;
(10) to the extent that it is an ordinary and usual operating or overhead expense;
(11) for any Lien attributable to such Indemnitee or any Related Indemnitee that Borrower is not obligated to discharge under the Operative Agreements;
(12) if another provision of an Operative Agreement specifies the extent of Borrower’s responsibility or obligation with respect to such Expense, to the extent arising from a cause other than Borrower’s failure to comply with such specified responsibility or obligation; or
(13) to the extent imposed on an Indemnitee as a result of any non-exempt “prohibited transaction” under 406(a) of ERISA or Section 4975(c)(1) series of the Code caused by such Indemnitee. For purposes Company’s stock will receive the same form of this Section 9.1, a Person shall be considered a “Related Indemnitee” of an Indemnitee if that Person is an Affiliate or employer consideration for their shares of such Indemnitee, a director, officer, employee, agent, class or servant series as is received by other holders in respect of their shares of such Indemnitee same class or any series of stock, (ii) each holder of a series of Preferred Stock will receive the same amount of consideration per share of such Affiliateseries of Preferred Stock as is received by other holders in respect of their shares of such same series, and (iii) each holder of Common Stock will receive the same amount of consideration per share of Common Stock as is received by other holders in respect of their shares of Common Stock.
Appears in 5 contracts
Sources: Voting Agreement (Gin & Luck Inc.), Voting Agreement (Gin & Luck Inc.), Voting Agreement (Gin & Luck Inc.)
Exceptions. Notwithstanding anything contained in Section 9.1(a)8.1.1, Borrower Owner shall not be required to indemnify, protect, defend or and hold harmless any Indemnitee pursuant to Section 9.1(a) against 8.1.1 in respect of any Expense of such Indemnitee:
(1a) for For any Taxes or a loss of Tax Benefitbenefit, whether or not Borrower Owner is required to indemnify therefor pursuant to Section 9.38.3;
(2b) Except to the extent attributable to acts or events occurring prior thereto, acts or events (other than acts or events related to the performance by Owner of its obligations pursuant to the terms of the Operative Agreements) that occur after the Trust Indenture is required to be terminated in accordance with Section 11.01 of the Trust Indenture; provided, that nothing in this clause (b) shall be deemed to exclude or limit any claim that any Indemnitee may have under applicable Law by reason of an Event of Default or for damages from Owner for breach of Owner’s covenants contained in the Operative Agreements or to release Owner from any of its obligations under the Operative Agreements that expressly provide for performance after termination of the Trust Indenture;
(c) To the extent attributable to any Transfer (voluntary or involuntary) by or on behalf of such Indemnitee of any Equipment Note, Commitment Note or interest therein, except for reasonable out-of-pocket costs and expenses incurred as a result of any such Transfer requested in writing by Borrower or made or effected as required by or pursuant to the terms of the Operative Agreements or made or effected in connection with or pursuant to the exercise of remedies under any Operative Agreement;
(3d) to [Intentionally Omitted]
(e) To the extent attributable to the gross negligence or willful misconduct of such Indemnitee or any “Related Indemnitee” related Indemnitee (as defined at the end of this Section 9.1(b)below) (other than gross negligence or willful misconduct imputed to such Person solely person by reason of its interest in the Aircraft or being party to any Operative Agreement);
(4f) to [Intentionally Omitted]
(g) To the extent attributable to the incorrectness or breach of any representation or warranty of such Indemnitee or any Related Indemnitee, related Indemnitee contained in or made pursuant to any Operative Agreement or any Pass Through Agreement;
(5h) to To the extent attributable to the failure by such Indemnitee or any Related related Indemnitee to perform or observe any express agreement, covenant, covenant or condition on its part to be performed or observed in any Operative Agreement or any Pass Through Agreement;
(6i) to To the extent attributable to the offer or sale by such Indemnitee or any Related related Indemnitee of any interest in the Aircraft, the Equipment Notes Notes, the Pass Through Certificates, or its Commitment any similar interest, in violation of the registration requirements of the Securities Act or in violation of the registration requirements of any other applicable federal, state or foreign securities Laws (other than any thereof caused by acts or omissions of BorrowerOwner);
(7i) With respect to any Indemnitee (other than Mortgagee), to the extent attributable to Security Agent’s the failure of the Mortgagee to distribute funds received and distributable by it in accordance with the Operative Trust Indenture, (ii) with respect to any Indemnitee (other than the Subordination Agent), to the extent attributable to the failure of the Subordination Agent to distribute funds received and distributable by it in accordance with the Intercreditor Agreement, (iii) with respect to any Indemnitee (other than the Pass Through Trustees), to the extent attributable to the failure of a Pass Through Trustee to distribute funds received and distributable by it in accordance with the Pass Through Trust Agreements, (iv) with respect to any Indemnitee (other than the Escrow Agent), to the extent attributable to the failure of the Escrow Agent to pay funds received and payable by it in accordance with any Escrow Agreement, (v) with respect to any Indemnitee (other than the Paying Agent), to the extent attributable to the failure of the Paying Agent to distribute funds received and distributable by it in accordance with any Escrow Agreement, (vi) to the extent attributable to the failure of the Depositary to pay funds payable by it in accordance with any Deposit Agreement, (vii) with respect to Mortgagee, to the extent attributable to the negligence or willful misconduct of Mortgagee in the distribution of funds received and distributable by it in accordance with the Trust Indenture, (viii) with respect to the Subordination Agent, to the extent attributable to the negligence or willful misconduct of the Subordination Agent in the distribution of funds received and distributable by it in accordance with the Intercreditor Agreement, (ix) with respect to the Pass Through Trustees, to the extent attributable to the negligence or willful misconduct of a Pass Through Trustee in the distribution of funds received and distributable by it in accordance with the Pass Through Trust Agreements, (x) with respect to the Escrow Agent, to the extent attributable to the negligence or willful misconduct of the Escrow Agent in the payment of funds received and payable by it in accordance with any Escrow Agreement and (xi) with respect to the Paying Agent, to the extent attributable to the negligence or willful misconduct of the Paying Agent in the distribution of funds received and distributable by it in accordance with any Escrow Agreement;
(8) other k) Other than during the existence continuation of an Event of Default, to the extent attributable to the authorization or giving or withholding of any future amendments, supplements, waivers, waivers or consents with respect to any Operative Agreement, Agreement or Pass Through Agreement other than any such as have been requested by Borrower Owner or as are required by or made pursuant to the terms of the Operative Agreements or Pass Through Agreements (unless such requirement results from the actions of an Indemnitee not required by or made pursuant to the Operative Agreements or the Pass Through Agreements);
(9l) to To the extent attributable to any amount which any Indemnitee expressly agrees to pay or such Indemnitee expressly agrees shall not be paid by or be reimbursed by BorrowerOwner;
(10m) to To the extent that it is an ordinary and usual operating or overhead expense;
(11n) for [Intentionally Omitted]
(o) For any Lien attributable to such Indemnitee or any Related Indemnitee that Borrower is not obligated to discharge under the Operative Agreementsrelated Indemnitee;
(12p) if If another provision of an Operative Agreement or a Pass Through Agreement specifies the extent of BorrowerOwner’s responsibility or obligation with respect to such Expense, to the extent arising from a cause other than Borrower’s failure of Owner to comply with such specified responsibility or obligation; or
(13q) to To the extent imposed on incurred by or asserted against an Indemnitee as a result of any non-exempt “prohibited transaction” under 406(a) ”, within the meaning of Section 406 of ERISA or Section 4975(c)(1) of the Code caused by such IndemniteeCode. For purposes of this Section 9.18.1, a Person shall be considered a “Related Indemniteerelated” of Indemnitee with respect to an Indemnitee if that such Person is an Affiliate or employer of such Indemnitee, a director, officer, employee, agent, or servant of such Indemnitee or any such AffiliateAffiliate or a successor or permitted assignee of any of the foregoing.
Appears in 5 contracts
Sources: Note Purchase Agreement (United Airlines, Inc.), Note Purchase Agreement (United Airlines, Inc.), Note Purchase Agreement
Exceptions. Notwithstanding anything contained in Section 9.1(a)9.1.1, Borrower Lessee shall not be required to indemnify, protect, defend or and hold harmless any Indemnitee pursuant to Section 9.1(a) against 9.1.1 in respect of any Expense of such Indemnitee:
(1a) for For any Taxes or a loss of Tax Benefitbenefit, whether or not Borrower Lessee is required to indemnify therefor pursuant to Section 9.39.3 or the Tax Indemnity Agreement;
(2b) Except to the extent attributable to acts or events occurring prior thereto, acts or events (other than acts or events related to the performance by Lessee of its obligations pursuant to the terms of the Lessee Operative Agreements) that occur after the earliest of: (i) with respect to the Airframe, any Engine or any Part, the return of possession (it being understood that the date of the placement of the Aircraft in storage as provided in Section 5 of the Lease constitutes the date of return of the Aircraft under the Lease) of such Airframe, Engine or Part pursuant to the terms of and in compliance with the Lease (other than pursuant to Section 15 thereof, in which case Lessee's liability under this Section 9.1 shall survive for so long as Lessor shall be entitled to exercise remedies under such Section 15) or (ii) the termination of the Term in accordance with the Lease;
(c) To the extent attributable to any Transfer (voluntary or involuntary) by or on behalf of such Indemnitee of any Equipment Note, Commitment Note or interest therein, except (i) for reasonable out-of-pocket costs and expenses incurred as a result of any such Transfer requested in writing by Borrower or made or effected as required by or pursuant to the terms of the Operative Agreements or made or effected in connection with or pursuant to the exercise of remedies under any Operative AgreementAgreement resulting from a Lease Event of Default and (ii) as otherwise required by the terms of Section 2.13 of the Trust Indenture or Section 11 hereof;
(3d) To the extent attributable to any Transfer (voluntary or involuntary) by or on behalf of Owner Participant of any interest in the Aircraft, or the Trust Estate except for out-of-pocket costs and expenses incurred as a result of any such Transfer in connection with the exercise of remedies attributable to the occurrence of an Indenture Event of Default that is a Lease Event of Default;
(e) To the extent attributable to the gross negligence or willful misconduct of such Indemnitee or any “Related Indemnitee” related Indemnitee (as defined at the end of this Section 9.1(b)below) (other than gross negligence or willful misconduct imputed to such Person solely person by reason of its interest in the Aircraft or being party to any Operative Agreement);
(4f) In the case of First Security, to the extent attributable to matters enumerated in the proviso to Section 14;
(g) To the extent attributable to the incorrectness or breach of any representation or warranty of such Indemnitee or any Related Indemnitee, related Indemnitee contained in or made pursuant to any Operative Agreement or any Pass Through Agreement;
(5h) to To the extent attributable to the failure by such Indemnitee or any Related related Indemnitee to perform or observe any express agreement, covenant, covenant or condition on its part to be performed or observed in any Operative Agreement or any Pass Through Agreement;
(6i) to To the extent attributable to the offer or sale by such Indemnitee or any Related related Indemnitee of any interest in the Aircraft, the Equipment Notes Notes, the Pass Through Trust Certificates, the Trust Estate or its Commitment the Trust Agreement or any similar interest, in violation of the registration requirements of the Securities Act or in violation of the registration requirements of any other applicable federal, state or foreign securities Laws (other than any thereof caused by the acts or omissions of BorrowerLessee);
(7i) With respect to any Indemnitee (other than Mortgagee), to the extent attributable to Security Agent’s the failure of the Mortgagee to distribute funds received and distributable by it in accordance with the Operative Trust Indenture, (ii) with respect to any Indemnitee (other than the Owner Trustee), to the extent attributable to the failure of the Owner Trustee to distribute funds received and distributable by it in accordance with the Trust Agreement, (iii) with respect to any Indemnitee (other than the Subordination Agent), to the extent attributable to the failure of the Subordination Agent to distribute funds received and distributable by it in accordance with the Intercreditor Agreement, (iv) with respect to any Indemnitee (other than the Pass Through Trustees), to the extent attributable to the failure of a Pass Through Trustee to distribute funds received and distributable by it in accordance with the Pass Through Trust Agreements;, (v) with respect to any Indemnitee (other than the Escrow Agent), to the extent attributable to the failure of the Escrow Agent to pay funds received and payable by it in accordance with any Escrow Agreement, (vi) with respect to any Indemnitee (other than the Paying Agent), to the extent attributable to the failure of the Paying Agent to distribute funds received and distributable by it in accordance with any Escrow Agreement, (vii) to the extent attributable to the failure of the Depositary to pay funds payable by it in accordance with any Deposit Agreement, (viii) with respect to Mortgagee, to the extent attributable to the negligence or willful misconduct of Mortgagee in the distribution of funds received and distributable by it in accordance with the Trust Indenture, (ix) with respect to Owner Trustee, to the extent attributable to the negligence or willful misconduct of Owner Trustee in the distribution of funds received and distributable by it in accordance with the Trust Agreement, (x) with respect to the Subordination Agent, to the extent attributable to the negligence or willful misconduct of the Subordination Agent in the distribution of funds received and distributable by it in accordance with the Intercreditor Agreement, (xi) with respect to the Pass Through Trustees, to the extent attributable to the negligence or willful misconduct of a Pass Through Trustee in the distribution of funds received and distributable by it in accordance with the Pass Through Trust Agreements, (xii) with respect to the Escrow Agent, to the extent attributable to the negligence or willful misconduct of the Escrow Agent in the payment of funds received and payable by it in accordance with any Escrow Agreement, and (xiii) with respect to the Paying Agent, to the extent attributable to the negligence or willful misconduct of the Paying Agent in the distribution of funds received and distributable by it in accordance with any Escrow Agreement.
(8) other k) Other than during the existence continuation of an a Lease Event of Default, to the extent attributable to the authorization or giving or withholding of any future amendments, supplements, waivers, waivers or consents with respect to any Operative Agreement, Agreement or Pass Through Agreement other than any such as have been requested by Borrower Lessee or as are required by or made pursuant to the terms of the Operative Agreements or Pass Through Agreements (unless such requirement results from the actions of an Indemnitee not required by or made pursuant to the Operative Agreements or the Pass Through Agreements);
(9l) to To the extent attributable to any amount which any Indemnitee expressly agrees to pay or such Indemnitee expressly agrees shall not be paid by or be reimbursed by BorrowerLessee;
(10m) to To the extent that it is an ordinary and usual operating or overhead expense;
(11n) for With respect to the Owner Participant or the Owner Trustee, or any related Indemnitee, to the extent attributable to the deregistration of the Aircraft under the Act as a result of Owner Participant's or Owner Trustee's (or any related Indemnitee of either) not being a Citizen of the United States as a result of any act (other than reregistration of the Aircraft pursuant to Section 7.1.2 of the Lease) of Owner Participant or Owner Trustee, or any related Indemnitee of either of the foregoing (not taken at the request of the Lessee);
(o) For any Lessor Lien attributable to such Indemnitee or any Related Indemnitee that Borrower is not obligated to discharge under the Operative Agreementsrelated Indemnitee;
(12p) if If another provision of an Operative Agreement or a Pass Through Agreement specifies the extent of Borrower’s Lessee's responsibility or obligation with respect to such Expense, to the extent arising from a cause other than Borrower’s failure of Lessee to comply with such specified responsibility or obligation; or;
(13q) to To the extent imposed constituting principal, Make-Whole Amount or interest on the Equipment Notes attributable solely to an Event of Default not constituting a Lease Event of Default;
(r) To the extent incurred by or asserted against an Indemnitee as a result of any non-exempt “"prohibited transaction” under 406(a) ", within the meaning of Section 406 of ERISA or Section 4975(c)(1) of the Code caused by Code; or
(s) To the extent not included in the definition of Supplemental Rent as a result of the provisions of clause (e) of such Indemniteedefinition. For purposes of this Section 9.1, a Person shall be considered a “Related Indemnitee” of "related" Indemnitee with respect to an Indemnitee if that such Person is an Affiliate or employer of such Indemnitee, a director, officer, employee, agent, or servant of such Indemnitee or any such AffiliateAffiliate or a successor or permitted assignee of any of the foregoing.
Appears in 4 contracts
Sources: Participation Agreement (Continental Airlines Inc /De/), Participation Agreement (Continental Airlines Inc /De/), Participation Agreement (Continental Airlines Inc /De/)
Exceptions. Notwithstanding anything in Section 9.1(a)the foregoing, Borrower a Shareholder shall not be required to indemnify, protect, defend or hold harmless comply with Section 3.2 in connection with any Indemnitee pursuant to Section 9.1(aproposed Sale of the Company (the "Proposed Sale") against any Expense of such Indemniteeunless:
(1a) for any Taxes representations and warranties to be made by such Shareholder in connection with the Proposed Sale are limited to representations and warranties related to authority, ownership and the ability to convey title to such Shares, including representations and warranties that (i) the Shareholder holds all right, title and interest in and to the Shares such Shareholder purports to hold, free and clear of all liens and encumbrances, (ii) the obligations of the Shareholder in connection with the transaction have been duly authorized, if applicable, (iii) the documents to be entered into by the Shareholder have been duly executed by the Shareholder and delivered to the acquirer and are enforceable against the Shareholder in accordance with their respective terms, and (iv) neither the execution and delivery of documents to be entered into in connection with the transaction, nor the performance of the Shareholder's obligations thereunder, will cause a breach or a loss violation of Tax Benefitthe terms of any agreement, whether law or not Borrower is required to indemnify therefor pursuant to Section 9.3judgment, order or decree of any court or governmental agency;
(2b) to the extent attributable to any Transfer (voluntary or involuntary) by or on behalf of such Indemnitee of any Equipment Note, Commitment or interest therein, except Shareholder shall not be liable for reasonable out-of-pocket costs and expenses incurred as a result of any such Transfer requested in writing by Borrower or made or effected as required by or pursuant to the terms of the Operative Agreements or made or effected in connection with or pursuant to the exercise of remedies under any Operative Agreement;
(3) to the extent attributable to the gross negligence or willful misconduct of such Indemnitee or any “Related Indemnitee” (as defined at the end of this Section 9.1(b)) (other than gross negligence or willful misconduct imputed to such Person solely by reason of its interest in the Aircraft or being party to any Operative Agreement);
(4) to the extent attributable to the incorrectness or breach inaccuracy of any representation or warranty of such Indemnitee or made by any Related Indemniteeother Person in connection with the Proposed Sale, contained in or made pursuant to any Operative Agreement;
other than the Company (5) except that and only to the extent attributable that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by any Shareholder of any representations, warranties and covenants provided by all Shareholders with respect to the failure by such Indemnitee or any Related Indemnitee to perform or observe any express agreement, covenant, or condition on its part to be performed or observed in any Operative Agreement;
(6) to the extent attributable to the offer or sale by such Indemnitee or any Related Indemnitee of any interest in the Equipment Notes or its Commitment in violation of the registration requirements of the Securities Act or in violation of the registration requirements of any applicable state or foreign securities Laws (other than any thereof caused by acts or omissions of BorrowerCompany);
(7c) the liability for indemnification, if any, of such Shareholder in the Proposed Sale and for the inaccuracy of any representations and warranties made by the Company or its Shareholders in connection with such Proposed Sale is several and not joint with any other Person (except that and only to the extent attributable that funds may be paid out of an escrow established to Security Agent’s failure cover breach of representations, warranties and covenants of the Company as well as breach by any Shareholder of any representations, warranties and covenants provided by all Shareholders with respect to distribute funds received the Company), and distributable by it subject to the provisions of the Articles related to the allocation of the escrow, is pro rata in proportion to, and does not exceed, the amount of consideration paid to such Shareholder in connection with such Proposed Sale;
(d) liability shall be limited to such Shareholder's applicable share (determined based on the respective proceeds payable to each Shareholder in connection with such Proposed Sale in accordance with the Operative Agreementsprovisions of the Articles) of a negotiated aggregate indemnification amount that applies equally to all Shareholders but that in no event exceeds the amount of consideration otherwise payable to such Shareholder in connection with such Proposed Sale, except with respect to claims related to fraud by such Shareholder, the liability for which need not be limited as to such Shareholder;
(8) e) upon the consummation of the Proposed Sale, (i) each holder of each class or series of Shares will receive the same form of consideration for their Shares of such class or series as is received by other than during holders in respect of their Shares of such same class or series, (ii) each holder of Common Shares will receive the existence same amount of an consideration per Common Share as is received by other holders in respect of their Common Shares, and (iii) the aggregate consideration receivable by all Shareholders shall be allocated among the Shareholders on the basis of the relative liquidation preferences to which the Shareholders are entitled in a Deemed Liquidation Event of Default, (assuming for this purpose that the Proposed Sale is a Deemed Liquidation Event) in accordance with the Articles in effect immediately prior to the extent attributable Proposed Sale; provided, however, that, notwithstanding the foregoing, if the consideration to be paid in exchange for any Shareholder's Shares pursuant to this Section 3.3(e) includes any securities and due receipt thereof by any Shareholder would require under applicable law (i) the authorization registration or giving qualification of such securities or withholding of any future amendments, supplements, waivers, person as a broker or consents with respect to any Operative Agreement, other than any requested by Borrower dealer or required by or made pursuant to the terms of the Operative Agreements (unless such requirement results from the actions of an Indemnitee not required by or made pursuant to the Operative Agreements);
(9) to the extent attributable to any amount which any Indemnitee expressly agrees to pay or such Indemnitee expressly agrees shall not be paid by or be reimbursed by Borrower;
(10) to the extent that it is an ordinary and usual operating or overhead expense;
(11) for any Lien attributable to such Indemnitee or any Related Indemnitee that Borrower is not obligated to discharge under the Operative Agreements;
(12) if another provision of an Operative Agreement specifies the extent of Borrower’s responsibility or obligation agent with respect to such Expensesecurities or (ii) the provision to any Shareholder of any information other than such information as a prudent issuer would generally furnish in an offering made solely to Accredited Investors, the Company may cause to be paid to any such Shareholder in lieu thereof, against surrender of such Shareholders' Shares, which would have otherwise been sold by such Shareholder, an amount in cash equal to the extent arising from a cause other than Borrower’s failure to comply with fair value (as determined in good faith by the Board) of the securities which such specified responsibility or obligationShareholder would otherwise receive as of the date of the issuance of such securities in exchange for such Shareholder's Shares; orand
(13f) subject to Section 3.3(e), if any holders of any class or series of Shares are given an option as to the extent imposed on an Indemnitee form and amount of consideration to be received as a result of any non-exempt “prohibited transaction” under 406(a) the Proposed Sale, all holders of ERISA such class or Section 4975(c)(1) series of Shares will be given the Code caused by such Indemnitee. For purposes of same option; provided, however, that nothing in this Section 9.1, 3.3(f) shall entitle any holder to receive any form of consideration that such holder would be ineligible to receive as a Person shall be considered a “Related Indemnitee” of an Indemnitee if that Person is an Affiliate or employer result of such Indemniteeholder's failure to satisfy any condition, a director, officer, employee, agent, requirement or servant of such Indemnitee or any such Affiliatelimitation that is generally applicable to the Shareholders.
Appears in 4 contracts
Sources: Private Placement Subscription Agreement (Naqi Logix Inc.), Subscription Agreement (Naqi Logix Inc.), Voting Agreement (Naqi Logix Inc.)
Exceptions. Notwithstanding anything in Section 9.1(a), Borrower (a) Exceptions to indemnity for Inclusions. Lessee shall not be required to indemnify, protect, defend or hold harmless any Indemnitee indemnify Lessor pursuant to Section 9.1(aArticle 8A.1
(a) against for Taxes to the extent arising from any Expense of such Indemniteethe following Inclusions:
(1i) for any Taxes Inclusion caused by an event that occurs after the expiration or a loss earlier termination of Tax Benefitthis Lease, whether or not Borrower is required to indemnify therefor the payment by Lessee of all Rent and other amounts due pursuant to Section 9.3;the Operating Lease Operative Documents, and (if required by the terms of this Lease) the return of the Aircraft to Lessor in accordance with the terms of this Lease, provided that the exclusion set forth in this Article 8A.2
(2a) (i) shall not apply to any Inclusion to the extent attributable such Inclusion is a result of one or more events occurring or circumstances existing prior to or concurrently with the expiration or earlier termination of this Lease or to any Transfer payment or amount payable by Lessee pursuant to this Lease or any other Operating Lease Operative Document, or
(voluntary ii) any Inclusion that would not have occurred but for a sale, assignment, transfer or involuntary) other disposition by or on behalf of such Indemnitee Lessor of any Equipment Noteinterest in the Aircraft or this Lease, Commitment either voluntarily or interest thereinby reason of bankruptcy or similar proceedings for the relief of debtors in which Lessor is the debtor, except for reasonable out-of-pocket costs and expenses incurred unless in either case such disposition occurs in connection with or as a result of (A) an Event of Default, (B) a Casualty Occurrence, (C) any substitution, replacement or pooling of the Aircraft or any part thereof, (D) any maintenance, repair, improvement, modification or alteration of, or addition to, the Aircraft or any part thereof, or unless in either case such Transfer requested in writing by Borrower or made or effected as disposition is required by or pursuant to applicable Law, or
(iii) any Inclusion that would not have occurred but for (A) the terms refinancing of the Operative Agreements Loan Certificates or made or effected in connection with or pursuant to the exercise of remedies under any Operative Agreement;
(3B) to the extent attributable to the gross negligence or willful misconduct of such Indemnitee or any “Related Indemnitee” (as defined at the end of this Section 9.1(b)) (other than gross negligence or willful misconduct imputed to such Person solely by reason of its interest in the Aircraft or being party to any Operative Agreement);Lessor, or
(4iv) any Inclusion that would not have occurred but for the timing of the recognition of income under Section 467 of the Code unless such Inclusion would not have occurred but for (A) any payment of Rent on a date prior to the extent attributable date on which such payment is scheduled to the incorrectness or breach be due, (B) any payment by Lessee of any representation or warranty expenses of such Indemnitee or any Related Tax Indemnitee, contained in or made pursuant to any Operative Agreement;
(5C) to the extent attributable to the failure acquisition by such Indemnitee Lessee or any another Lessee Related Indemnitee to perform or observe any express agreement, covenant, or condition on its part to be performed or observed in any Operative Agreement;
(6) to the extent attributable to the offer or sale by such Indemnitee or any Related Indemnitee Person of any interest in the Equipment Notes Loan Certificates or its Commitment in violation any other evidence of indebtedness issued by the registration requirements of Head Lessor to refund or refinance the Securities Act or in violation of the registration requirements of any applicable state or foreign securities Laws (other than any thereof caused by acts or omissions of Borrower);
(7) to the extent attributable to Security Agent’s failure to distribute funds received and distributable by it Loan Certificates in accordance with the Head Lease Operative Agreements;
(8) other than during the existence of an Event of DefaultDocuments, to the extent attributable to the authorization or giving or withholding of any future amendments, supplements, waivers, or consents with respect to any Operative Agreement, other than any requested by Borrower or required by or made pursuant to the terms of the Operative Agreements (unless such requirement results from the actions of an Indemnitee not required by or made pursuant to the Operative Agreements);
(9) to the extent attributable to any amount which any Indemnitee expressly agrees to pay or such Indemnitee expressly agrees shall not be paid by or be reimbursed by Borrower;
(10) to the extent that it is an ordinary and usual operating or overhead expense;
(11) for any Lien attributable to such Indemnitee or any Related Indemnitee that Borrower is not obligated to discharge under the Operative Agreements;
(12) if another provision of an Operative Agreement specifies the extent of Borrower’s responsibility or obligation with respect to such Expense, to the extent arising from a cause other than Borrower’s failure to comply with such specified responsibility or obligation; or
(13v) any Inclusion that would not have occurred but for any change in or addition to the extent imposed on Internal Revenue Code of 1986, any other statute relating to Federal income taxes, any treaty, any regulation, revenue ruling, revenue procedure or other administrative interpretation, or any executive order that is enacted, promulgated or issued after the Delivery Date, provided that the exclusion in this clause (v) shall not apply to any Inclusion resulting from (A) any alteration, improvement, modification, pooling, repair, addition, replacement or substitution of or to the Aircraft or any part thereof, (B) any payment by Lessee of any expenses of any Tax Indemnitee, or (C) the acquisition by Lessee or another Lessee Related Person of any interest in the Loan Certificates or any other evidence of indebtedness issued by the Head Lessor to refund or refinance the Loan Certificates in accordance with the Head Lease Operative Documents, or
(vi) any Inclusion that would not have occurred but for an Indemnitee event or occurrence as a result of any non-exempt “prohibited transaction” under 406(a) of ERISA or Section 4975(c)(1) of the Code caused which Lessee is required to pay and shall have paid in full an amount calculated by such Indemnitee. For purposes of this Section 9.1, a Person shall be considered a “Related Indemnitee” of an Indemnitee if that Person is an Affiliate or employer of such Indemnitee, a director, officer, employee, agent, or servant of such Indemnitee or any such Affiliatereference to Agreed Value.
Appears in 4 contracts
Sources: Lease Agreement (Midway Airlines Corp), Lease Agreement (Midway Airlines Corp), Lease Agreement (Midway Airlines Corp)
Exceptions. Notwithstanding anything The indemnity provided for in Section 9.1(a), Borrower 9.01(a) shall not be required extend to indemnify, protect, defend or hold harmless any Indemnitee pursuant to Section 9.1(a) against any Expense of such Indemniteeany Indemnitee to the extent it:
(1i) would not have occurred but for the willful misconduct or gross negligence of such Indemnitee;
(ii) is in respect of the Aircraft, and is attributable to acts or events which occur after the Aircraft is no longer part of the Lessor's Estate or leased under the Lease or, if the Aircraft remains a part of the Lessor's Estate, after the expiration of the Term and any Taxes holdover period under Section 12.05 of the Lease (other than pursuant to Article 17 of the Lease, in which case the indemnity provided in Section 9.01(a) hereof shall survive for so long as Lessor or the Indenture Trustee shall be entitled to exercise remedies under such Article 17), or to acts or events which occur after return of possession of the Aircraft by the Lessee in accordance with the provisions of the Lease but in any such case only to the extent not fairly attributable to acts or omissions of the Lessee prior to expiration of the Term and any holdover period under Section 12.05 of the Lease, including without limitation the Lessee's failure to fully discharge all of its obligations under the Lease or the other Operative Agreements or the Original Agreements;
(iii) is a loss of Tax BenefitTax, whether or not Borrower the Lessee is required to indemnify therefor pursuant to Section 9.3;
(2) to the extent attributable to any Transfer (voluntary or involuntary) by or on behalf of such Indemnitee of any Equipment Note, Commitment or interest therein, except for reasonable out-of-pocket costs and expenses incurred as a result of any such Transfer requested in writing by Borrower or made or effected as required by Article 8 hereof or pursuant to the terms of the Operative Agreements or made or effected in connection with or pursuant to the exercise of remedies under any Operative Tax Indemnity Agreement;
(3iv) is a cost or expense required to be paid by the Owner Participant or its permitted transferees (and not by the Lessee) pursuant to this Agreement or any other Operative Agreement (other than the Owner Participant's obligations under Section 6.01 of the Trust Agreement) and for which the Lessee is not otherwise obligated to reimburse the Owner Participant, directly or indirectly;
(v) would not have been incurred by such Indemnitee if such Indemnitee had not been in breach of its representations or warranties, or had not defaulted in the observance and performance of the terms and provisions required to be observed and performed by it, in this Agreement, the Purchase Agreement Assignment, the Lease, the Indenture, the Trust Agreement, the Original Agreements or any other Operative Agreement to which it is a party unless such breach or default shall be a result of the breach or default of any of the foregoing by the Lessee or another Indemnitee;
(vi) [reserved];
(vii) in the case of the Owner Participant, Lessor's Liens to the extent attributable to the gross negligence or willful misconduct of such Indemnitee or any “Related Indemnitee” (as defined at the end of this Section 9.1(b)) (other than gross negligence or willful misconduct imputed to such Person solely by reason of its interest Owner Participant; in the Aircraft or being party to any Operative Agreement);
(4) case of the Owner Trustee, Lessor's Liens to the extent attributable to the incorrectness or breach Owner Trustee; and in the case of any representation or warranty of such Indemnitee or any Related Indemniteethe Indenture Trustee, contained in or made pursuant to any Operative AgreementIndenture Trustee's Liens;
(5viii) to is in the extent attributable to case of the failure by such Indemnitee Owner Participant or any Related Indemnitee to perform or observe any express agreementthe Owner Trustee, covenant, or condition on its part to be performed or observed in any Operative Agreement;
(6) to the extent attributable to the offer or sale by such Indemnitee or any Related Indemnitee after the Delivery Date of any interest in the Equipment Notes Aircraft, the Lessor's Estate or its Commitment the Trust Agreement or any similar interest (including an offer or sale resulting from bankruptcy or other proceedings for the relief of debtors in violation which such Indemnitee is the debtor), unless in each case such offer or sale shall occur (w) in connection with a Refinancing, (x) as a result of exercise of remedies under Article 17 of the registration requirements of the Securities Act or in violation of the registration requirements of any applicable state or foreign securities Laws Lease, (other than any thereof caused by acts or omissions of Borrower);
(7y) to the extent attributable to Security Agent’s failure to distribute funds received and distributable by it in accordance with the Operative Agreements;
(8) other than during the existence of a period when an Event of Default, to Loss has occurred or (z) in connection with the extent attributable to termination of the authorization Lease or giving action or withholding direction of any future amendments, supplements, waivers, or consents with respect to any Operative Agreement, other than any requested by Borrower or required by or made the Lessee pursuant to the terms of the Operative Agreements (unless such requirement results from the actions of an Indemnitee not required by or made pursuant to the Operative Agreements);
(9) to the extent attributable to any amount which any Indemnitee expressly agrees to pay or such Indemnitee expressly agrees shall not be paid by or be reimbursed by Borrower;
(10) to the extent that it is an ordinary and usual operating or overhead expense;
(11) for any Lien attributable to such Indemnitee or any Related Indemnitee that Borrower is not obligated to discharge under the Operative Agreements;
(12) if another provision of an Operative Agreement specifies the extent of Borrower’s responsibility or obligation with respect to such Expense, to the extent arising from a cause other than Borrower’s failure to comply with such specified responsibility or obligationLease; or
(13ix) which is incurred by the Owner Participant or any person who is a "disqualified person", within the meaning of Section 4975(e)(2) of the Code, or a "party in interest", within the meaning of Section 3(14) of ERISA, by virtue of such person's relationship to the extent imposed on an Indemnitee Owner Participant, as a the result of any non-exempt “prohibited transaction” under 406(a) , within the meaning of Section 406 of ERISA or Section 4975(c)(1) of the Code caused by such Indemnitee. For purposes Code, occurring with respect to the purchase or holding of this Section 9.1, any Pass Through Certificate (i) over which purchase or holding the Owner Participant or any Affiliate thereof has discretion or control (other than in the capacity of a Person shall be considered a “Related Indemnitee” of an Indemnitee if that Person is an Affiliate directed trustee or employer of such Indemnitee, a director, officer, employee, agentcustodian), or servant (ii) by an employee benefit plan, within the meaning of such Indemnitee Section 3(3) of ERISA, or individual retirement account or plan subject to Section 4975 of the Code with respect to which the Owner Participant (or any Affiliate thereof) has the power, directly or indirectly, to appoint or terminate, or to negotiate the terms of the management agreement with, the person or persons having discretion or control (other than in the capacity of a directed trustee or custodian), over such Affiliatepurchase or holding.
Appears in 4 contracts
Sources: Participation Agreement (Federal Express Corp), Participation Agreement (Federal Express Corp), Participation Agreement (Federal Express Corp)
Exceptions. Notwithstanding anything in Section 9.1(a), Borrower shall not be required to indemnify, protect, defend or hold harmless any Indemnitee pursuant to Section 9.1(a) against any Expense of such Indemnitee:
(1) for any Taxes or a loss of Tax Benefit, whether or not Borrower is required to indemnify therefor pursuant to Section 9.3;
(2) Any other provision herein to the extent attributable to any Transfer (voluntary or involuntary) by or on behalf of such Indemnitee of any Equipment Notecontrary notwithstanding, Commitment or interest therein, except for reasonable out-of-pocket costs and expenses incurred as a result of any such Transfer requested in writing by Borrower or made or effected as required by or pursuant to the terms of this Agreement, an Indemnifying Party shall not be obligated:
(a) to indemnify the Operative Agreements Indemnified Party for any acts or made omissions or effected in connection with transactions from which a trustee, director, officer or pursuant to the exercise of remedies under any Operative Agreementagent may not be indemnified by such Indemnifying Party, as provided by Applicable Law;
(3b) to the extent attributable indemnify or advance Expenses to the gross negligence Indemnified Party with respect to proceedings or willful misconduct claims initiated or brought voluntarily by the Indemnified Party and not by way of such Indemnitee defence, except with respect to proceedings brought to establish or any “Related Indemnitee” (as defined at the end enforce a right to indemnification under this Agreement, Applicable Law or a policy of this Section 9.1(b)insurance referred to in subsection 7(a) (other than gross negligence or willful misconduct imputed to such Person solely by reason of its interest in the Aircraft or being party to any Operative Agreement)hereof;
(4c) to indemnify the extent attributable to Indemnified Party for any Expenses incurred by the incorrectness or breach of any representation or warranty of such Indemnitee or any Related Indemnitee, contained in or made pursuant to any Operative Agreement;
(5) to the extent attributable to the failure by such Indemnitee or any Related Indemnitee to perform or observe any express agreement, covenant, or condition on its part to be performed or observed in any Operative Agreement;
(6) to the extent attributable to the offer or sale by such Indemnitee or any Related Indemnitee of any interest in the Equipment Notes or its Commitment in violation of the registration requirements of the Securities Act or in violation of the registration requirements of any applicable state or foreign securities Laws (other than any thereof caused by acts or omissions of Borrower);
(7) to the extent attributable to Security Agent’s failure to distribute funds received and distributable by it in accordance with the Operative Agreements;
(8) other than during the existence of an Event of Default, to the extent attributable to the authorization or giving or withholding of any future amendments, supplements, waivers, or consents Indemnified Party with respect to any Operative Proceeding instituted to enforce or interpret this Agreement, other than if a Final Determination is made that any requested by Borrower or required by or made pursuant to the terms of the Operative Agreements (unless material assertions made by the Indemnified Party in such requirement results from the actions of an Indemnitee proceedings are not required by made in good faith or made pursuant to the Operative Agreements)are frivolous;
(9d) to indemnify the extent attributable Indemnified Party for Expenses or liabilities of any type whatsoever which have been paid directly to any amount which any Indemnitee expressly agrees to pay the Indemnified Party by an insurance carrier under a policy of trustees’, directors’, managers’, officers’ or such Indemnitee expressly agrees shall not be paid other applicable liability insurance maintained by or be reimbursed by Borroweran Indemnifying Party;
(10e) to indemnify the extent that it is an ordinary and usual operating Indemnified Party for Expenses or overhead expense;
(11) for any Lien attributable to such Indemnitee or any Related Indemnitee that Borrower is not obligated to discharge under the Operative Agreements;
(12) if another provision payment of an Operative Agreement specifies the extent of Borrower’s responsibility or obligation with respect to such Expense, to the extent profits arising from a cause other than Borrower’s failure to comply with such specified responsibility or obligationthe purchase and sale by the Indemnified Party of securities in violation of applicable securities laws; or
(13f) to indemnify the extent imposed on Indemnified Party for Expenses for which the Indemnified Party is indemnified by an Indemnitee as a result of any non-exempt “prohibited transaction” under 406(a) of ERISA or Section 4975(c)(1) of the Code caused by such Indemnitee. For purposes of Indemnifying Party otherwise than pursuant to this Section 9.1, a Person shall be considered a “Related Indemnitee” of an Indemnitee if that Person is an Affiliate or employer of such Indemnitee, a director, officer, employee, agent, or servant of such Indemnitee or any such AffiliateAgreement.
Appears in 3 contracts
Sources: Indemnification Agreement (Bumble Bee Capital Corp.), Indemnification Agreement (Bumble Bee Capital Corp.), Indemnification Agreement (Bumble Bee Capital Corp.)
Exceptions. Notwithstanding anything in Section 9.1(a)the foregoing, Borrower shall a Stockholder will not be required to indemnify, protect, defend or hold harmless comply with Subsection 2.1 above in connection with any Indemnitee pursuant to Section 9.1(aproposed Sale of the Company (the “Proposed Sale”) against any Expense of such Indemniteeunless:
(1a) for any Taxes representations and warranties to be made by such Stockholder in connection with the Proposed Sale are limited to representations and warranties related to authority, ownership and the ability to convey title to such Shares, including but not limited to representations and warranties that (i) the Stockholder holds all right, title and interest in and to the Shares such Stockholder purports to hold, free and clear of all liens and encumbrances, (ii) the obligations of the Stockholder in connection with the transaction have been duly authorized, if applicable, (iii) the documents to be entered into by the Stockholder have been duly executed by the Stockholder and delivered to the acquirer and are enforceable against the Stockholder in accordance with their respective terms and (iv) neither the execution and delivery of documents to be entered into in connection with the transaction, nor the performance of the Stockholder’s obligations thereunder, will cause a breach or a loss violation of Tax Benefitthe terms of any agreement, whether law or not Borrower is required to indemnify therefor pursuant to Section 9.3judgment, order or decree of any court or governmental agency;
(2b) to the extent attributable to any Transfer (voluntary or involuntary) by or on behalf of such Indemnitee of any Equipment Note, Commitment or interest therein, except Stockholder shall not be liable for reasonable out-of-pocket costs and expenses incurred as a result of any such Transfer requested in writing by Borrower or made or effected as required by or pursuant to the terms of the Operative Agreements or made or effected in connection with or pursuant to the exercise of remedies under any Operative Agreement;
(3) to the extent attributable to the gross negligence or willful misconduct of such Indemnitee or any “Related Indemnitee” (as defined at the end of this Section 9.1(b)) (other than gross negligence or willful misconduct imputed to such Person solely by reason of its interest in the Aircraft or being party to any Operative Agreement);
(4) to the extent attributable to the incorrectness or breach inaccuracy of any representation or warranty of such Indemnitee or made by any Related Indemniteeother Person in connection with the Proposed Sale, contained in or made pursuant to any Operative Agreement;
other than the Company (5) except to the extent attributable that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the failure Company as well as breach by such Indemnitee or any Related Indemnitee to perform or observe any express agreement, covenant, or condition on its part to be performed or observed in any Operative Agreement;
(6) to the extent attributable to the offer or sale by such Indemnitee or any Related Indemnitee stockholder of any interest in the Equipment Notes or its Commitment in violation of the registration requirements of the Securities Act or in violation of the registration requirements of any applicable state or foreign securities Laws (other than any thereof caused identical representations, warranties and covenants provided by acts or omissions of Borrowerall stockholders);
(7c) to the extent attributable to Security Agent’s failure to distribute funds received liability for indemnification, if any, of such Stockholder in the Proposed Sale and distributable by it in accordance with for the Operative Agreements;
(8) other than during the existence of an Event of Default, to the extent attributable to the authorization or giving or withholding inaccuracy of any future amendmentsrepresentations and warranties made by the Company or its Stockholders in connection with such Proposed Sale, supplements, waivers, or consents is several and not joint with respect to any Operative Agreement, other than any requested by Borrower or required by or made pursuant to the terms of the Operative Agreements Person (unless such requirement results from the actions of an Indemnitee not required by or made pursuant to the Operative Agreements);
(9) to the extent attributable to any amount which any Indemnitee expressly agrees to pay or such Indemnitee expressly agrees shall not be paid by or be reimbursed by Borrower;
(10) except to the extent that it funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by any stockholder of any of identical representations, warranties and covenants provided by all stockholders), and is an ordinary pro rata in proportion to, and usual operating or overhead expense;does not exceed, the amount of consideration paid to such Stockholder in connection with such Proposed Sale; and
(11d) upon the consummation of the Proposed Sale, (i) each holder of each class or series of the Company’s stock will receive the same form of consideration for their shares of such class or series as is received by other holders in respect of their shares of such same class or series of stock, and (ii) each holder of Common Stock will receive the same amount of consideration per share of Common Stock as is received by other holders in respect of their shares of Common Stock; provided, however, that, notwithstanding the foregoing, if the consideration to be paid in exchange for the Stockholder Shares pursuant to this Subsection 2.3(d) includes any Lien attributable to securities and due receipt thereof by any Stockholder would require under applicable law (x) the registration or qualification of such Indemnitee securities or of any Related Indemnitee that Borrower is not obligated to discharge under the Operative Agreements;
(12) if another provision of an Operative Agreement specifies the extent of Borrower’s responsibility person as a broker or obligation dealer or agent with respect to such Expensesecurities or (y) the provision to any Stockholder of any information other than such information as a prudent issuer would generally furnish in an offering made solely to “accredited investors” as defined in Regulation D promulgated under the Securities Act, the Company may cause to be paid to any such Stockholder in lieu thereof, against surrender of the Stockholder Shares which would have otherwise been sold by such Stockholder, an amount in cash equal to the extent arising from a cause other than Borrower’s failure to comply with such specified responsibility or obligation; or
fair value (13) to as determined in good faith by the extent imposed on an Indemnitee as a result of any non-exempt “prohibited transaction” under 406(a) of ERISA or Section 4975(c)(1Company) of the Code caused by securities which such Indemnitee. For purposes Stockholder would otherwise receive as of this Section 9.1, a Person shall be considered a “Related Indemnitee” the date of an Indemnitee if that Person is an Affiliate or employer the issuance of such Indemnitee, a director, officer, employee, agent, or servant of such Indemnitee or any such Affiliatesecurities in exchange for the Stockholder Shares.
Appears in 3 contracts
Sources: Voting Agreement, Voting Agreement (Cesca Therapeutics Inc.), Voting Agreement (Cesca Therapeutics Inc.)
Exceptions. Notwithstanding anything The indemnity provided for in Section 9.1(a), Borrower 7.01(a) shall not be required extend to indemnify, protect, defend or hold harmless any Indemnitee pursuant to Section 9.1(a) against any Expense of such Indemniteeany Indemnitee to the extent it:
(1i) for any Taxes or a loss of Tax Benefit, whether or not Borrower is required to indemnify therefor pursuant to Section 9.3;
(2) attributable to the extent attributable to any Transfer (voluntary willful misconduct or involuntary) by or on behalf gross negligence of such Indemnitee of any Equipment Note, Commitment or interest therein, except for reasonable out-of-pocket costs and expenses incurred as a result of any such Transfer requested in writing by Borrower or made or effected as required by or pursuant to the terms of the Operative Agreements or made or effected in connection with or pursuant to the exercise of remedies under any Operative Agreement;
(3) to the extent attributable to the gross negligence or willful misconduct of such Indemnitee or any “Related Indemnitee” (as defined at the end of this Section 9.1(b)) (other than gross negligence or willful misconduct imputed to such Person solely person by reason of its interest in the Aircraft or being party to any Operative Agreementtransaction documents);
(4ii) except to the extent fairly attributable to acts or events occurring prior thereto, is attributable to acts or events (other than the performance by Lessee of its obligations pursuant to the terms of the Operative Agreements) which occur after the Aircraft is no longer part of the Lessor's Estate or, if the Aircraft remains a part of the Lessor's Estate, after the expiration of the Term (unless the Aircraft is being returned at such time, in which case after return of physical possession; PROVIDED that if the Lease has been terminated pursuant to Section 17 thereof, the indemnity provided in Section 7.01(a) hereof shall survive for so long as Lessor shall be exercising remedies under such Section 17), or to acts or events which occur after return of possession of the Aircraft by the Lessee in accordance with the provisions of the Lease (subject to the foregoing proviso if the Lessor has terminated the Lease pursuant to Section 17 of the Lease); PROVIDED that nothing in this clause (ii) shall be deemed to exclude or limit any claim that any Indemnitee may have under Applicable Law by reason of an Event of Default or for damages from Lessee for breach of Lessee's covenants contained in the Lessee Documents or to release Lessee from any of its obligations under the Lessee Documents that expressly provide for performance after termination of the Term;
(iii) other than as expressly provided herein or in the other Operative Agreements, is a Tax or loss of a Tax benefit, whether or not the Lessee is required to indemnify therefor pursuant to Article 6 hereof or pursuant to the Tax Indemnity Agreement;
(iv) is a cost or expense expressly required to be paid by such Indemnitee or its permitted transferees (and not by the Lessee) pursuant to this Agreement or any other Operative Agreement and for which the Lessee is not otherwise obligated to reimburse such Indemnitee, directly or indirectly pursuant to the terms of this Agreement or such other Operative Agreement;
(v) is attributable to the incorrectness or breach by such Indemnitee of its representations or warranties, under any of the Operative Agreements except to the extent such incorrectness or breach was caused by a breach by Lessee of any representation or warranty or by any failure of such Indemnitee or Lessee to perform any Related Indemnitee, contained in or made pursuant to any obligation under an Operative Agreement;
(5vi) to the extent is attributable to the failure by such Indemnitee or any Related Indemnitee to perform any of its obligations under any of the Operative Agreements except to the extent such failure was caused by a breach by Lessee of any representation or observe warranty or by any express agreement, covenant, or condition on its part failure of Lessee to be performed or observed in perform any obligation under an Operative Agreement;
(6vii) is, in the case of the Owner Participant, Lessor's Liens attributable to the Owner Participant; in the case of the Owner Trustee, Lessor's Liens to the extent attributable to the Owner Trustee; in the case of Trust Company, Lessor's Liens to the extent attributable to Trust Company;
(viii) is, in the case of the Owner Participant or the Owner Trustee, attributable to the offer or sale by such Indemnitee or any Related Indemnitee of any interest in the Equipment Notes Aircraft, the Lessor's Estate or its Commitment the Trust Agreement or any similar interest (including an offer or sale resulting from bankruptcy or other proceedings for the relief of debtors in violation which such Indemnitee is the debtor), unless in each case such offer or sale shall occur pursuant to the exercise of remedies under Section 17 of the registration requirements of the Securities Act or in violation of the registration requirements of any applicable state or foreign securities Laws (other than any thereof caused by acts or omissions of Borrower)Lease;
(7ix) to in the extent attributable to Security Agent’s failure to distribute funds received and distributable by it in accordance with the Operative Agreements;
(8) other than during the existence of an Event of Default, to the extent attributable to the authorization or giving or withholding of any future amendments, supplements, waivers, or consents with respect to any Operative Agreement, other than any requested by Borrower or required by or made pursuant to the terms case of the Operative Agreements (unless such requirement results from the actions of an Indemnitee not required by or made pursuant to the Operative Agreements);
(9) to the extent attributable to any amount which any Indemnitee expressly agrees to pay or such Indemnitee expressly agrees shall not be paid by or be reimbursed by Borrower;
(10) to the extent that it Owner Participant, is an ordinary and usual operating Expense relating to, resulting from, arising out of or overhead expense;
(11) for any Lien attributable to such Indemnitee or any Related Indemnitee that Borrower is not obligated to discharge under the Operative Agreements;
(12) if another provision of an Operative Agreement specifies the extent of Borrower’s responsibility or obligation in connection with respect to such Expense, to the extent arising from a cause other than Borrower’s failure to comply with such specified responsibility or obligation; or
(13) to the extent imposed on an Indemnitee as a result of any non-exempt “"prohibited transaction” under 406(a) " within the meaning of Section 406 of ERISA or Section 4975(c)(1) of the Code caused by such Indemnitee. For purposes resulting from the direct or indirect use of this assets of any ERISA Plan to acquire or hold Owner Participant's interest in the Trust Estate or in the case of any transferee of the Owner Participant referred to in Section 9.15.01(c), a Person shall be considered a “Related Indemnitee” to purchase the Beneficial Interest pursuant to Section 5.01(c);
(x) except during the continuation of an Indemnitee if that Person Event of Default, is an Affiliate or employer attributable to any amendment to any of such Indemnitee, a director, officer, employee, agentthe Operative Agreements which is not requested, or servant consented to, by the Lessee or is not required or made pursuant to the terms of any of the Operative Agreements;
(xi) is attributable to the exercise by any Indemnitee of any right to inspect the Aircraft except with respect to any such inspection conducted while an Event of Default is continuing; and
(xii) constitutes the loss of future profits of such Indemnitee or any losses attributable to such AffiliateIndemnitee's overhead.
Appears in 3 contracts
Sources: Participation Agreement (Republic Airways Holdings Inc), Participation Agreement (Republic Airways Holdings Inc), Participation Agreement (Republic Airways Holdings Inc)
Exceptions. Notwithstanding anything in any provision of this Section 9.1(a34(a) to the contrary (other than with respect to the loss of Tax Savings for which an AT&T Group Member has reimbursed or credited Tower Operator under Section 34(c), Borrower in which case only the exceptions listed in clauses (C), (F) and (G) shall apply), Tower Operator shall not be required to indemnify, protect, defend or hold harmless make any payment to any Tax Indemnitee pursuant to Section 9.1(a) against in respect of any Expense of such Indemnitee:
(1) for any Taxes or a loss of Tax Benefit, whether or not Borrower is required to indemnify therefor pursuant to Section 9.3;
(2) Loss to the extent attributable to that any Transfer (voluntary or involuntary) by or on behalf of such Indemnitee of any Equipment Note, Commitment or interest therein, except for reasonable out-of-pocket costs and expenses incurred Tax Loss occurs as a result of one or more of the following:
(A) Other than as a result of an event or circumstance described in Section 34(a)(iii), the determination that this Agreement is not a “true lease” for federal income Tax purposes or that the members of the AT&T Group, directly or indirectly through one or more entities that are classified as partnerships or disregarded entities for federal income tax purposes, are not the owners or sublessors of the Included Property, or that Section 467 of the Code does not apply to this Agreement in accordance with its terms;
(B) The voluntary sale, assignment, transfer or other disposition or the involuntary sale, assignment, transfer or other disposition attributable to a Bankruptcy Event or the breach of any covenant or obligation of the Tax Indemnitee set forth in the Transaction Documents of or by any such Transfer requested Tax Indemnitee or any of its Affiliates, in writing by Borrower or made or effected as required by or pursuant to the terms either case, of any of the Operative Agreements Included Property or made portion of such Included Property by any such Tax Indemnitee or effected any of its Affiliates other than a sale, assignment, transfer or disposition (1) contemplated by the Transaction Documents or to or at the request of Tower Operator; (2) otherwise resulting from the exercise by any AT&T Group Member of its rights or performance of its obligations under the Transaction Documents; or (3) in connection with a default by Tower Operator or pursuant to the exercise of remedies under any Operative this Agreement;
(3C) to the extent attributable to the The gross negligence or willful misconduct of such Indemnitee Tax Indemnitee;
(D) Penalties, interest or additions to Tax to the extent based upon issues unrelated to the transactions contemplated by this Agreement and related documents;
(E) Tower Operator’s exercise of the Purchase Option provided in Section 20;
(F) The failure by the AT&T Group or any “Related Indemnitee” AT&T Group Member timely or properly to claim any Federal Income Tax Benefits or to exclude income on the appropriate Tax return other than in accordance with Section 34(a)(iii);
(G) Any failure of the Tax Indemnitee to have taken all the actions, if any, required of it by Section 34(d) to contest the Loss and such failure materially prejudices the ability to contest, and Tower Operator had a reasonable basis for such contest;
(H) Any change in the Code enacted, adopted or promulgated on or after the date of the Master Agreement; provided that this exclusion shall not apply to any substitution or replacement of any Included Property after a change in Law;
(I) The failure of the AT&T Group, or any single AT&T Group Member, to have sufficient income or Tax liability to benefit from the Federal Income Tax Benefits (it being understood that except as defined provided herein, this exclusion shall not affect the amount of any indemnity to which an Indemnitee would otherwise be entitled);
(J) The inclusion of income by an AT&T Group Member as a result of the reversion of Modifications made by Tower Operator to any AT&T Lessor at the end of this Section 9.1(b)) (other than gross negligence or willful misconduct imputed to such Person solely by reason of its interest in the Aircraft or being party to any Operative Agreement)Term;
(4K) to Other than as a result of an event or circumstance described in Section 34(a)(iii), a determination that AT&T is not holding the extent attributable to Included Property in the incorrectness ordinary course of a trade or breach of any representation business or warranty of such Indemnitee or any Related Indemnitee, contained in or made pursuant to any Operative Agreementthat AT&T did not enter into the transactions contemplated by the Transaction Documents for profit;
(5L) to the extent attributable to the failure by such Indemnitee The existence of, or any Related Indemnitee to perform or observe any express agreementconsequence of, covenantthe prepayment of the Rent, or condition on its part to be performed or observed in any Operative Agreement;
(6) to the extent attributable to the offer or sale by such Indemnitee or any Related Indemnitee application of any interest in the Equipment Notes or its Commitment in violation Section 467 of the registration requirements of Code or the Securities Act or in violation of Treasury regulations promulgated thereunder; provided that the registration requirements of any applicable state or foreign securities Laws (other than any thereof caused by acts or omissions of Borrower);
(7) to the extent attributable to Security Agent’s failure to distribute funds received Tower Operator makes all payments when due and distributable by it accrues all rental expense in accordance with the Operative AgreementsProportional Rent as set forth in Exhibit D and provided, further, that this exclusion shall not apply to the entry into a New Lease under Section 21 following the default or breach by Tower Operator;
(8) other than during M) Any Tax election or Tax Position by an AT&T Group Member that is inconsistent with the existence of an Event of Default, Tax Assumptions to the extent attributable to of a resulting increase in the authorization or giving or withholding of any future amendments, supplements, waivers, or consents Tower Operator’s indemnity obligations hereunder;
(N) A Tax Loss with respect to any Operative Agreementperiod occurring (1) before the Term with respect to a Site, (2) after (and not simultaneously with) the expiration or earlier termination of the Term with respect to a Site or (3) after (and not simultaneously with) the return to AT&T of the Included Property related to a Site, in each case other than interest, fines, penalties and additions to Tax resulting from a Tax Loss that would not be excluded under this clause (N); and
(O) The breach or inaccuracy of any requested representation, warranty or covenant by Borrower or required by or made pursuant to the terms any AT&T Group Member in any of the Operative Agreements Transaction Documents (unless such requirement results from the actions of an Indemnitee not required by or made pursuant to the Operative Agreements);
(9) except to the extent attributable such breach or inaccuracy is attributed to a breach or inaccuracy of any amount which any Indemnitee expressly agrees to pay representation, warranty or such Indemnitee expressly agrees shall not be paid by covenant of Tower Operator or be reimbursed by Borrower;
(10) to the extent that it is an ordinary and usual operating or overhead expense;
(11) for any Lien attributable to such Indemnitee or any Related Indemnitee that Borrower is not obligated to discharge Affiliate under the Operative Agreements;
(12) if another provision of an Operative Agreement specifies the extent of Borrower’s responsibility or obligation with respect to such Expense, to the extent arising from a cause other than Borrower’s failure to comply with such specified responsibility or obligation; or
(13) to the extent imposed on an Indemnitee as a result of any non-exempt “prohibited transaction” under 406(a) of ERISA or Section 4975(c)(1) of the Code caused by such Indemnitee. For purposes of this Section 9.1, a Person shall be considered a “Related Indemnitee” of an Indemnitee if that Person is an Affiliate or employer of such Indemnitee, a director, officer, employee, agent, or servant of such Indemnitee or any such AffiliateTransaction Documents).
Appears in 3 contracts
Sources: Master Prepaid Lease (Crown Castle International Corp), Master Prepaid Lease (At&t Inc.), Master Prepaid Lease (Crown Castle International Corp)
Exceptions. Notwithstanding anything in Section 9.1(a)the foregoing, Borrower shall a Stockholder will not be required to indemnify, protect, defend or hold harmless comply with Section 3.2 above in connection with any Indemnitee pursuant to Section 9.1(aproposed Sale of the Company (the “Proposed Sale”) against any Expense of such Indemniteeunless:
(1a) for any Taxes representations and warranties to be made by such Stockholder in connection with the Proposed Sale are limited to representations and warranties related to authority, ownership and the ability to convey title to such Shares, including but not limited to representations and warranties that (i) the Stockholder holds all right, title and interest in and to the Shares such Stockholder purports to hold, free and clear of all liens and encumbrances, (ii) the obligations of the Stockholder in connection with the transaction have been duly authorized, if applicable, (iii) the documents to be entered into by the Stockholder have been duly executed by the Stockholder and delivered to the acquirer and are enforceable against the Stockholder in accordance with their respective terms and (iv) neither the execution and delivery of documents to be entered into in connection with the transaction, nor the performance of the Stockholder’s obligations thereunder, will cause a breach or a loss violation of Tax Benefitthe terms of any agreement, whether law or not Borrower is required to indemnify therefor pursuant to Section 9.3judgment, order or decree of any court or governmental agency;
(2b) to the extent attributable to any Transfer (voluntary or involuntary) by or on behalf of such Indemnitee of any Equipment Note, Commitment or interest therein, except Stockholder shall not be liable for reasonable out-of-pocket costs and expenses incurred as a result of any such Transfer requested in writing by Borrower or made or effected as required by or pursuant to the terms of the Operative Agreements or made or effected in connection with or pursuant to the exercise of remedies under any Operative Agreement;
(3) to the extent attributable to the gross negligence or willful misconduct of such Indemnitee or any “Related Indemnitee” (as defined at the end of this Section 9.1(b)) (other than gross negligence or willful misconduct imputed to such Person solely by reason of its interest in the Aircraft or being party to any Operative Agreement);
(4) to the extent attributable to the incorrectness or breach inaccuracy of any representation or warranty of made by any other Person in connection with the Proposed Sale, other than the Company (and in such Indemnitee or any Related Indemnitee, contained in or made pursuant to any Operative Agreement;
(5) event only to the extent attributable that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the failure Company as well as breach by such Indemnitee or any Related Indemnitee to perform or observe any express agreement, covenant, or condition on its part to be performed or observed in any Operative Agreement;
(6) to the extent attributable to the offer or sale by such Indemnitee or any Related Indemnitee stockholder of any interest in of identical representations, warranties and covenants provided by all stockholders (the Equipment Notes or its Commitment in violation of the registration requirements of the Securities Act or in violation of the registration requirements of any applicable state or foreign securities Laws (other than any thereof caused by acts or omissions of Borrower“Escrow”));
(7c) the liability, if any, of such Stockholder in connection with the Proposed Sale and for the inaccuracy of any representations and warranties made by the Company in connection with such Proposed Sale, is several and not joint with any other Person (except to the extent attributable that funds may be paid out of the Escrow), and is pro rata in proportion to Security Agent’s failure the amount of consideration paid to distribute funds received and distributable by it such Stockholder in connection with such Proposed Sale (in accordance with the Operative Agreements;
(8) other than during the existence of an Event of Default, to the extent attributable to the authorization or giving or withholding of any future amendments, supplements, waivers, or consents with respect to any Operative Agreement, other than any requested by Borrower or required by or made pursuant to the terms provisions of the Operative Agreements (unless such requirement results from the actions of an Indemnitee not required by or made pursuant to the Operative AgreementsRestated Charter);
(9d) liability shall be limited to such Stockholder’s applicable share (determined based on the extent attributable respective proceeds payable to any each Stockholder in connection with such Proposed Sale in accordance with the provisions of the Restated Charter) that is contributed to a negotiated Escrow but that in no event exceeds the amount of consideration otherwise payable to such Stockholder in connection with such Proposed Sale, except with respect to claims related to fraud by such Stockholder, the liability for which any Indemnitee expressly agrees to pay or such Indemnitee expressly agrees shall need not be paid by or be reimbursed by Borrowerlimited as to such Stockholder;
(10e) upon the consummation of the Proposed Sale, (i) each holder of each class or series of the Company’s stock will receive the same form of consideration for their shares of such class or series as is received by other holders in respect of their shares of such same class or series of stock, (ii) each holder of a share of a series of Preferred Stock will receive the same amount of consideration per share of such series of Preferred Stock as is received by other holders in respect of their shares of such series of Preferred Stock, (iii) each holder of Common Stock will receive the same amount of consideration per share of Common Stock as is received by other holders in respect of their shares of Common Stock, and (iv) unless the holders of at least a majority of the shares of Preferred Stock, voting together as a single class on an as-converted basis, and the holders of at least a majority of the Series F Preferred Stock, voting as a separate class, elect otherwise by written notice given to the extent Company at least fifteen (15) days prior to the effective date of any such Proposed Sale, the aggregate consideration receivable by all holders of the Preferred Stock and Common Stock shall be allocated among the holders of Preferred Stock and Common Stock on the basis of the relative liquidation preferences to which the holders of each respective series of Preferred Stock and the holders of Common Stock are entitled in a Deemed Liquidation Event (assuming for this purpose that it the Proposed Sale is an ordinary and usual operating or overhead expense;a Deemed Liquidation Event) in accordance with the Restated Charter in effect immediately prior to the Proposed Sale; and
(11f) for any Lien attributable subject to such Indemnitee or any Related Indemnitee that Borrower is not obligated clause (e) above, requiring the same form of consideration to discharge under the Operative Agreements;
(12) if another provision of an Operative Agreement specifies the extent of Borrower’s responsibility or obligation with respect to such Expense, be available to the extent arising from a cause other than Borrower’s failure to comply with such specified responsibility holders of any single class or obligation; or
(13) series of capital stock, if any holders of any capital stock of the Company are given an option as to the extent imposed on an Indemnitee form and amount of consideration to be received as a result of any non-exempt “prohibited transaction” under 406(a) of ERISA or Section 4975(c)(1) of the Code caused by such Indemnitee. For purposes of this Section 9.1Proposed Sale, a Person shall be considered a “Related Indemnitee” of an Indemnitee if that Person is an Affiliate or employer all holders of such Indemnitee, a director, officer, employee, agent, or servant of such Indemnitee or any such Affiliatecapital stock will be given the same option.
Appears in 3 contracts
Sources: Voting Agreement (Yext, Inc.), Voting Agreement (Yext, Inc.), Voting Agreement (Yext, Inc.)
Exceptions. Notwithstanding anything in Section 9.1(a)the foregoing, Borrower shall a Stockholder will not be required to indemnify, protect, defend or hold harmless comply with Subsection 3.2 above in connection with any Indemnitee pursuant to Section 9.1(aproposed Sale of the Company (the “Proposed Sale”) against any Expense of such Indemniteeunless:
(1a) for any Taxes representations and warranties to be made by such Stockholder in connection with the Proposed Sale are limited to representations and warranties related to authority, ownership and the ability to convey title to such Shares, including but not limited to representations and warranties that (i) the Stockholder holds all right, title and interest in and to the Shares such Stockholder purports to hold, free and clear of all liens and encumbrances, (ii) the obligations of the Stockholder in connection with the transaction have been duly authorized, if applicable, (iii) the documents to be entered into by the Stockholder have been duly executed by the Stockholder and delivered to the acquirer and are enforceable against the Stockholder in accordance with their respective terms and (iv) neither the execution and delivery of documents to be entered into in connection with the transaction, nor the performance of the Stockholder’s obligations thereunder, will cause a breach or a loss violation of Tax Benefitthe terms of any agreement, whether law or not Borrower is required to indemnify therefor pursuant to Section 9.3judgment, order or decree of any court or governmental agency;
(2b) to the extent attributable to any Transfer (voluntary or involuntary) by or on behalf of such Indemnitee of any Equipment Note, Commitment or interest therein, except Stockholder shall not be liable for reasonable out-of-pocket costs and expenses incurred as a result of any such Transfer requested in writing by Borrower or made or effected as required by or pursuant to the terms of the Operative Agreements or made or effected in connection with or pursuant to the exercise of remedies under any Operative Agreement;
(3) to the extent attributable to the gross negligence or willful misconduct of such Indemnitee or any “Related Indemnitee” (as defined at the end of this Section 9.1(b)) (other than gross negligence or willful misconduct imputed to such Person solely by reason of its interest in the Aircraft or being party to any Operative Agreement);
(4) to the extent attributable to the incorrectness or breach inaccuracy of any representation or warranty of such Indemnitee or made by any Related Indemniteeother Person in connection with the Proposed Sale, contained in or made pursuant to any Operative Agreement;
other than the Company (5) except to the extent attributable that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the failure Company as well as breach by such Indemnitee or any Related Indemnitee to perform or observe any express agreement, covenant, or condition on its part to be performed or observed in any Operative Agreement;
(6) to the extent attributable to the offer or sale by such Indemnitee or any Related Indemnitee stockholder of any interest in the Equipment Notes or its Commitment in violation of the registration requirements of the Securities Act or in violation of the registration requirements of any applicable state or foreign securities Laws (other than any thereof caused identical representations, warranties and covenants provided by acts or omissions of Borrowerall stockholders);
(7c) the liability for indemnification, if any, of such Stockholder in the Proposed Sale and for the inaccuracy of any representations and warranties made by the Company or its Stockholders in connection with such Proposed Sale, is several and not joint with any other Person (except to the extent attributable that funds may be paid out of an escrow established to Security Agentcover breach of representations, warranties and covenants of the Company as well as breach by any stockholder of any of identical representations, warranties and covenants provided by all stockholders), and subject to the provisions of the Restated Certificate related to the allocation of the escrow, is pro rata in proportion to, and does not exceed, the amount of consideration paid to such Stockholder in connection with such Proposed Sale, except in the case of liability for fraud or willful misconduct by such Stockholder;
(d) upon the consummation of the Proposed Sale, subject to Subsection 3.2(f) above, (i) each holder of each class or series of the Company’s failure stock will receive the same form of consideration for their shares of such class or series as is received by other holders in respect of their shares of such same class or series of stock, (ii) each holder of a series of Preferred Stock (if any is authorized and outstanding) will receive the same amount of consideration per share of such series of Preferred Stock as is received by other holders in respect of their shares of such same series (except for cash payments in lieu of fractional shares), and (iii) each holder of Common Stock will receive the same amount of consideration per share of Common Stock as is received by other holders in respect of their shares of Common Stock (except for cash payments in lieu of fractional shares), and (iv) unless the holders of at least a majority of the shares of Preferred Stock then outstanding, voting collectively as a single class on an as-converted basis, elect to distribute funds received receive a lesser amount by written notice given to the Company at least two (2) days prior to the effective date of any such Proposed Sale, the aggregate consideration receivable by all holders of the Preferred Stock and distributable by it Common Stock shall be allocated among the holders of Preferred Stock and Common Stock on the basis of the relative liquidation preferences to which the holders of each respective series of Preferred Stock and the holders of Common Stock are entitled in a Deemed Liquidation Event (assuming for this purpose that the Proposed Sale is a Deemed Liquidation Event) in accordance with the Operative Agreements;
(8) other than during the existence of an Event of Default, Company’s Restated Certificate in effect immediately prior to the extent attributable Proposed Sale; provided, however, that, notwithstanding the foregoing, if the consideration to be paid in exchange for the authorization Key Holder Shares or giving Rights Holder Shares, as applicable, pursuant to this Subsection 3.3(d) includes any securities and due receipt thereof by any Key Holder or withholding Rights Holder would require under applicable law (x) the registration or qualification of such securities or of any future amendments, supplements, waivers, Person as a broker or consents with respect to any Operative Agreement, other than any requested by Borrower dealer or required by or made pursuant to the terms of the Operative Agreements (unless such requirement results from the actions of an Indemnitee not required by or made pursuant to the Operative Agreements);
(9) to the extent attributable to any amount which any Indemnitee expressly agrees to pay or such Indemnitee expressly agrees shall not be paid by or be reimbursed by Borrower;
(10) to the extent that it is an ordinary and usual operating or overhead expense;
(11) for any Lien attributable to such Indemnitee or any Related Indemnitee that Borrower is not obligated to discharge under the Operative Agreements;
(12) if another provision of an Operative Agreement specifies the extent of Borrower’s responsibility or obligation agent with respect to such Expensesecurities or (y) the provision to any Key Holder or Rights Holder of any information other than such information as a prudent issuer would generally furnish in an offering made solely to “accredited investors” as defined in Regulation D promulgated under the Securities Act of 1933, as amended, the Company may cause to be paid to any such Key Holder or Rights Holder in lieu thereof, against surrender of the Key Holder Shares or Rights Holder Shares, as applicable, which would have otherwise been sold by such Key Holder or Rights Holder, an amount in cash equal to the extent arising from a cause other than Borrower’s failure to comply with fair value (as determined in good faith by the Company) of the securities which such specified responsibility Key Holder or obligationRights Holder would otherwise receive as of the date of the issuance of such securities in exchange for the Key Holder Shares or Rights Holder Shares, as applicable; orand
(13e) subject to clause (d) above, requiring the same form of consideration to be available to the extent imposed on holders of any single class or series of capital stock, if any holders of any capital stock of the Company are given an Indemnitee option as to the form and amount of consideration to be received as a result of any non-exempt “prohibited transaction” under 406(a) of ERISA or Section 4975(c)(1) of the Code caused by such Indemnitee. For purposes of this Section 9.1Proposed Sale, a Person shall be considered a “Related Indemnitee” of an Indemnitee if that Person is an Affiliate or employer all holders of such Indemniteecapital stock will be given the same option; provided, however, that nothing in this Subsection 3.3(e) shall entitle any holder to receive any form of consideration that such holder would be ineligible to receive as a director, officer, employee, agent, or servant result of such Indemnitee holder’s failure to satisfy any condition, requirement or any such Affiliatelimitation that is generally applicable to the Company’s stockholders.
Appears in 3 contracts
Sources: Voting Agreement (Denim LA, Inc.), Voting Agreement (Denim LA, Inc.), Voting Agreement (Denim LA, Inc.)
Exceptions. Notwithstanding anything in Section 9.1(a)the foregoing, Borrower shall a Member will not be required to indemnify, protect, defend or hold harmless comply with Section 6.1 above in connection with any Indemnitee pursuant to Section 9.1(aproposed Sale of the Company (the “Proposed Sale”) against any Expense of such Indemniteeunless:
(1a) for any Taxes representations and warranties to be made by such Member in connection with the Proposed Sale are limited to representations and warranties related to authority, ownership and the ability to convey title to such Units, including but not limited to representations and warranties that (i) such Member holds all right, title and interest in and to the Units such Member purports to hold, free and clear of all liens and encumbrances, (ii) the obligations of such Member in connection with the transaction have been duly authorized, if applicable, (iii) the documents to be entered into by such Member have been duly executed by such Member and delivered to the acquirer and are enforceable against such Member in accordance with their respective terms and (iv) neither the execution and delivery of documents to be entered into in connection with the transaction, nor the performance of such Member’s obligations thereunder, will cause a breach or a loss violation of Tax Benefitthe terms of any agreement, whether law or not Borrower is required to indemnify therefor pursuant to Section 9.3judgment, order or decree of any court or governmental agency;
(2b) to such Member shall not be liable for the extent attributable to any Transfer (voluntary or involuntary) by or on behalf of such Indemnitee of any Equipment Note, Commitment or interest therein, except for reasonable out-of-pocket costs and expenses incurred as a result of any such Transfer requested in writing by Borrower or made or effected as required by or pursuant to the terms of the Operative Agreements or made or effected in connection with or pursuant to the exercise of remedies under any Operative Agreement;
(3) to the extent attributable to the gross negligence or willful misconduct of such Indemnitee or any “Related Indemnitee” (as defined at the end of this Section 9.1(b)) (other than gross negligence or willful misconduct imputed to such Person solely by reason of its interest in the Aircraft or being party to any Operative Agreement);
(4) to the extent attributable to the incorrectness or breach inaccuracy of any representation or warranty of such Indemnitee or made by any Related Indemniteeother Person in connection with the Proposed Sale, contained in or made pursuant to any Operative Agreement;
other than the Company (5) except to the extent attributable that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the failure Company as well as breach by such Indemnitee or any Related Indemnitee to perform or observe any express agreement, covenant, or condition on its part to be performed or observed in any Operative Agreement;
(6) to the extent attributable to the offer or sale by such Indemnitee or any Related Indemnitee Member of any interest in the Equipment Notes or its Commitment in violation of the registration requirements of the Securities Act or in violation of the registration requirements of any applicable state or foreign securities Laws (other than any thereof caused identical representations, warranties and covenants provided by acts or omissions of Borrowerall Members);
(7c) to the extent attributable to Security Agent’s failure to distribute funds received liability for indemnification, if any, of such Member in the Proposed Sale and distributable by it in accordance with for the Operative Agreements;
(8) other than during the existence of an Event of Default, to the extent attributable to the authorization or giving or withholding inaccuracy of any future amendmentsrepresentations and warranties made by the Company or its Members in connection with such Proposed Sale, supplements, waivers, or consents is several and not joint with respect to any Operative Agreement, other than any requested by Borrower or required by or made pursuant to the terms of the Operative Agreements Person (unless such requirement results from the actions of an Indemnitee not required by or made pursuant to the Operative Agreements);
(9) to the extent attributable to any amount which any Indemnitee expressly agrees to pay or such Indemnitee expressly agrees shall not be paid by or be reimbursed by Borrower;
(10) except to the extent that it funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by any Member of any of identical representations, warranties and covenants provided by all Members), and is an ordinary pro rata in proportion to, and usual operating or overhead expense;
(11) for any Lien attributable does not exceed, the amount of consideration paid to such Indemnitee or any Related Indemnitee that Borrower is not obligated to discharge under the Operative Agreements;
(12) if another provision of an Operative Agreement specifies the extent of Borrower’s responsibility or obligation Member in connection with such Proposed Sale, except with respect to claims related to fraud and any claim related to breach by such ExpenseMember of any representation, warranty or covenant made by such Member with respect to itself, the liability for which need not be limited; and
(d) upon the consummation of the Proposed Sale, (i) each holder of each class or series of Units will receive the same form of consideration for their Units of such class or series as is received by other holders in respect of their Units of such same class or series, (ii) each holder of Series A Preferred Units will receive the same amount of consideration per Series A Preferred Unit as is received by other holders in respect of their Series A Preferred Units, (iii) each holder of Series B Preferred Units will receive the same amount of consideration per Series B Preferred Unit as is received by other holders in respect of their Series B Preferred Units, (iv) each holder of Common Units will receive the same amount of consideration per Common Unit as is received by other holders in respect of their Common Units, and, unless the holders of a majority of the Preferred Units elect to receive a lesser amount by written notice given to the extent arising from Company at least five (5) days prior to the effective date of any such Proposed Sale, the aggregate consideration receivable by all holders of the Preferred Units and Common Units shall be allocated among them on the basis to which the holders of Preferred Units and the holders of Common Units are entitled in a cause other than Borrower’s failure Sale of the Company in accordance with this Agreement as in effect immediately prior to comply with such specified responsibility or obligation; orthe Proposed Sale.
(13e) Subject to clause (d) requiring the same form of consideration to be available to the extent imposed on holders of any single class or series of Units, if any holders of any class or series of Units are given an Indemnitee option as to the form and amount of consideration to be received as a result of any non-exempt “prohibited transaction” under 406(a) the Proposed Sale, all holders of ERISA such class or Section 4975(c)(1) series of Units will be given the Code caused by such Indemnitee. For purposes of same option; provided, however, that nothing in this Section 9.16.2(e) shall entitle any holder to receive any form of consideration that such holder would be ineligible to receive (including, without limitation, under applicable securities laws) or as a Person shall be considered a “Related Indemnitee” of an Indemnitee if that Person is an Affiliate or employer result of such Indemniteeholder’s failure to satisfy any condition, a director, officer, employee, agent, requirement or servant of such Indemnitee or any such Affiliatelimitation that is generally applicable to the Members.
Appears in 3 contracts
Sources: Operating Agreement, Operating Agreement (Rhythm Holding Company, LLC), Operating Agreement (Rhythm Holding Company, LLC)
Exceptions. Notwithstanding anything in Section 9.1(a)the foregoing, Borrower shall a Stockholder will not be required to indemnifycomply with Subsection 3.2 above in connection with any proposed Sale of the Company (the “Proposed Sale”), protect, defend or hold harmless any Indemnitee pursuant to Section 9.1(a) against any Expense of such Indemniteeunless:
(1a) for any Taxes representations and warranties to be made by such Stockholder in connection with the Proposed Sale are limited to representations and warranties related to authority, ownership and the ability to convey title to such Shares, including, but not limited to, representations and warranties that (i) the Stockholder holds all right, title and interest in and to the Shares such Stockholder purports to hold, free and clear of all liens and encumbrances, (ii) the obligations of the Stockholder in connection with the transaction have been duly authorized, if applicable, (iii) the documents to be entered into by the Stockholder have been duly executed by the Stockholder and delivered to the acquirer and are enforceable against the Stockholder in accordance with their respective terms; and (iv) neither the execution and delivery of documents to be entered into in connection with the transaction, nor the performance of the Stockholder’s obligations thereunder, will cause a breach or a loss violation of Tax Benefitthe terms of any agreement, whether law or not Borrower is required to indemnify therefor pursuant to Section 9.3judgment, order or decree of any court or governmental agency;
(2b) to the extent attributable to any Transfer (voluntary or involuntary) by or on behalf of such Indemnitee of any Equipment Note, Commitment or interest therein, except Stockholder shall not be liable for reasonable out-of-pocket costs and expenses incurred as a result of any such Transfer requested in writing by Borrower or made or effected as required by or pursuant to the terms of the Operative Agreements or made or effected in connection with or pursuant to the exercise of remedies under any Operative Agreement;
(3) to the extent attributable to the gross negligence or willful misconduct of such Indemnitee or any “Related Indemnitee” (as defined at the end of this Section 9.1(b)) (other than gross negligence or willful misconduct imputed to such Person solely by reason of its interest in the Aircraft or being party to any Operative Agreement);
(4) to the extent attributable to the incorrectness or breach inaccuracy of any representation or warranty of such Indemnitee or made by any Related Indemniteeother Person in connection with the Proposed Sale, contained in or made pursuant to any Operative Agreement;
other than the Company (5) except to the extent attributable that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the failure Company as well as breach by such Indemnitee or any Related Indemnitee to perform or observe any express agreement, covenant, or condition on its part to be performed or observed in any Operative Agreement;
(6) to the extent attributable to the offer or sale by such Indemnitee or any Related Indemnitee stockholder of any interest in the Equipment Notes or its Commitment in violation of the registration requirements of the Securities Act or in violation of the registration requirements of any applicable state or foreign securities Laws (other than any thereof caused identical representations, warranties and covenants provided by acts or omissions of Borrowerall stockholders);
(7c) the liability for indemnification, if any, of such Stockholder in the Proposed Sale and for the inaccuracy of any representations and warranties made by the Company or its Stockholders in connection with such Proposed Sale, is several and not joint with any other Person (except to the extent attributable that funds may be paid out of an escrow established to Security Agentcover breach of representations, warranties and covenants of the Company as well as breach by any stockholder of any of identical representations, warranties and covenants provided by all stockholders), and subject to the provisions of the Restated Certificate related to the allocation of the escrow, is pro rata in proportion to, and does not exceed, the amount of consideration paid to such Stockholder in connection with such Proposed Sale;
(d) liability shall be limited to such Stockholder’s failure applicable share (determined based on the respective proceeds payable to distribute funds received and distributable by it each Stockholder in connection with such Proposed Sale in accordance with the Operative Agreementsprovisions of the Restated Certificate) of a negotiated aggregate indemnification amount that applies equally to all Stockholders but that in no event exceeds the amount of consideration otherwise payable to such Stockholder in connection with such Proposed Sale, except with respect to claims related to fraud by such Stockholder, the liability for which need not be limited as to such Stockholder;
(8) e) upon the consummation of the Proposed Sale (i) each holder of each class or series of the Company’s stock will receive the same form of consideration for their shares of such class or series as is received by other than during holders in respect of their shares of such same class or series of stock, (ii) each holder of a series of Preferred Stock will receive the existence same amount of an Event consideration per share of Defaultsuch series of Preferred Stock as is received by other holders in respect of their shares of such same series, (iii) each holder of Common Stock will receive the same amount of consideration per share of Common Stock as is received by other holders in respect of their shares of Common Stock, and (iv) unless the holders of a majority of the then outstanding shares of Preferred Stock elect to receive a lesser amount by written notice given to the extent attributable Company at least ten days prior to the authorization or giving or withholding effective date of any future amendmentssuch Proposed Sale, supplementsthe aggregate consideration receivable by all holders of the Preferred Stock and Common Stock shall be allocated among the holders of Preferred Stock and Common Stock on the basis of the relative liquidation preferences to which the holders of each respective series of Preferred Stock and the holders of Common Stock are entitled in a Deemed Liquidation Event (assuming for this purpose that the Proposed Sale is a Deemed Liquidation Event) in accordance with the Company’s Certificate of Incorporation in effect immediately prior to the Proposed Sale; provided, waivershowever, that, notwithstanding the foregoing, if the consideration to be paid in exchange for the Key Holder Shares or consents with respect to any Operative AgreementInvestor Shares, other than any requested by Borrower or required by or made as applicable, pursuant to this Subsection 3.3(e) includes any securities and due receipt thereof by any Key Holder or Investor would require under applicable law (x) the terms registration or qualification of the Operative Agreements (unless such requirement results from the actions securities or of an Indemnitee not required by any person as a broker or made pursuant to the Operative Agreements);
(9) to the extent attributable to any amount which any Indemnitee expressly agrees to pay dealer or such Indemnitee expressly agrees shall not be paid by or be reimbursed by Borrower;
(10) to the extent that it is an ordinary and usual operating or overhead expense;
(11) for any Lien attributable to such Indemnitee or any Related Indemnitee that Borrower is not obligated to discharge under the Operative Agreements;
(12) if another provision of an Operative Agreement specifies the extent of Borrower’s responsibility or obligation agent with respect to such Expensesecurities; or (y) the provision to any Key Holder or Investor of any information other than such information as a prudent issuer would generally furnish in an offering made solely to “accredited investors” as defined in Regulation D promulgated under the Securities Act of 1933, as amended, the Company may cause to be paid to any such Key Holder or Investor in lieu thereof, against surrender of the Key Holder Shares or Investor Shares, as applicable, which would have otherwise been sold by such Key Holder or Investor, an amount in cash equal to the extent arising from a cause other than Borrower’s failure to comply with fair value (as determined in good faith by the Company) of the securities which such specified responsibility Key Holder or obligationInvestor would otherwise receive as of the date of the issuance of such securities in exchange for the Key Holder Shares or Investor Shares, as applicable; orand
(13f) subject to clause (e) above, requiring the same form of consideration to be available to the extent imposed on holders of any single class or series of capital stock, if any holders of any capital stock of the Company are given an Indemnitee option as to the form and amount of consideration to be received as a result of any non-exempt “prohibited transaction” under 406(a) of ERISA or Section 4975(c)(1) of the Code caused by such Indemnitee. For purposes of this Section 9.1Proposed Sale, a Person shall be considered a “Related Indemnitee” of an Indemnitee if that Person is an Affiliate or employer all holders of such Indemniteecapital stock will be given the same option; provided, however, that nothing in this Subsection 3.3(f) shall entitle any holder to receive any form of consideration that such holder would be ineligible to receive as a director, officer, employee, agent, or servant result of such Indemnitee holder’s failure to satisfy any condition, requirement or any such Affiliatelimitation that is generally applicable to the Company’s stockholders.
Appears in 3 contracts
Sources: Voting Agreement (Winc, Inc.), Voting Agreement (Winc, Inc.), Voting Agreement (Winc, Inc.)
Exceptions. Notwithstanding anything to the contrary herein, the indemnity provided for in Section 9.1(a), Borrower shall 1.01 will not be required extend to indemnify, protect, defend or hold harmless any Claim of any Indemnitee pursuant to Section 9.1(a) against any Expense of such Indemniteethe extent it:
(1a) for any Taxes is attributable to acts or a loss events occurring after the redelivery of Tax Benefitthe Aircraft to Lessor, whether except to the extent fairly attributable to acts or not Borrower is required to indemnify therefor pursuant to Section 9.3events occurring prior thereto;
(2b) to the extent attributable to any Transfer (voluntary or involuntary) by or on behalf of such Indemnitee of any Equipment Note, Commitment or interest therein, except for reasonable out-of-pocket costs and expenses incurred as a result of any such Transfer requested in writing by Borrower or made or effected as required by or pursuant to the terms of the Operative Agreements or made or effected in connection with or pursuant to the exercise of remedies under any Operative Agreement;
(3) to the extent is directly attributable to the gross negligence or willful misconduct of such Indemnitee or the breach or inaccuracy of any “Related Indemnitee” (as defined at the end representation, warranty or covenant of this Section 9.1(b)) (other than gross negligence or willful misconduct imputed to such Person solely by reason of its interest Indemnitee in the Aircraft Lease or being party to in any other Operative Agreement)Document;
(4c) other than as expressly provided in Section 1.04 of this Exhibit H, is a Tax or loss of a Tax benefit, whether or not the Lessee is required to indemnify therefor pursuant to Article XIV hereof or pursuant to the Tax Indemnity Agreement;
(d) is a cost or expense expressly required to be paid by such Indemnitee or its permitted transferees (and not by the Lessee) pursuant to the Lease or any other Operative Document and for which the Lessee is not otherwise obligated to reimburse such Indemnitee, directly or indirectly pursuant to the terms of the Lease or such other Operative Document;
(e) is, in the case of the Beneficiary, Lessor's Liens attributable to the Beneficiary; in the case of the Owner Trustee, Lessor's Liens to the extent attributable to the incorrectness or breach Owner Trustee; in the case of any representation or warranty of such Indemnitee or any Related IndemniteeWFB, contained in or made pursuant to any Operative Agreement;
(5) Lessor's Liens to the extent attributable to WFB; in the failure by such Indemnitee or any Related Indemnitee to perform or observe any express agreementcase of a Financing Party, covenant, or condition on its part to be performed or observed in any Operative Agreement;
(6) Lessor's Liens to the extent attributable to such Financing Party;
(f) is, in the offer case of the Beneficiary or the Owner Trustee, attributable to the sale by such Indemnitee or any Related Indemnitee of any interest in the Equipment Notes Aircraft, the Beneficial Interest or its Commitment any similar interest (including a sale resulting from bankruptcy or other proceedings for the relief of debtors in violation which such Indemnitee is the debtor and which is not caused by the Default of the registration requirements of the Securities Act or Lessee), unless in violation of the registration requirements of any applicable state or foreign securities Laws (other than any thereof caused by acts or omissions of Borrower);
(7) each case such sale shall occur pursuant to the extent attributable to Security Agent’s failure to distribute funds received and distributable by it in accordance with exercise of remedies under Section 17.02 hereof or following the Operative Agreements;
(8) other than during the existence occurrence of an Event of Default, to the extent attributable to the authorization or giving or withholding of any future amendments, supplements, waivers, or consents with respect to any Operative Agreement, other than any requested by Borrower or required by or made pursuant to the terms of the Operative Agreements (unless such requirement results from the actions of an Indemnitee not required by or made pursuant to the Operative Agreements);
(9g) to in the extent attributable to any amount which any Indemnitee expressly agrees to pay case of the Beneficiary, is a Claim relating to, resulting from, arising out of or such Indemnitee expressly agrees shall not be paid by or be reimbursed by Borrower;
(10) to the extent that it is an ordinary and usual operating or overhead expense;
(11) for any Lien attributable to such Indemnitee or any Related Indemnitee that Borrower is not obligated to discharge under the Operative Agreements;
(12) if another provision of an Operative Agreement specifies the extent of Borrower’s responsibility or obligation in connection with respect to such Expense, to the extent arising from a cause other than Borrower’s failure to comply with such specified responsibility or obligation; or
(13) to the extent imposed on an Indemnitee as a result of any non-exempt “"prohibited transaction” under 406(a) " within the meaning of Section 406 of ERISA or Section 4975(c)(1) of the Code caused by such Indemnitee. For purposes resulting from the direct or indirect use of this assets of any ERISA Plan to acquire or hold Beneficiary's interest in the Trust Estate or in the case of any transferee of the Beneficiary referred to in Section 9.110(b)(v) of the Purchase Agreement, a Person shall be considered a “Related Indemnitee” to purchase the Beneficial Interest pursuant to Section 10(b)(v) of the Purchase Agreement;
(h) except during the continuation of an Indemnitee if that Person Event of Default, is an Affiliate or employer attributable to any amendment to any of such Indemnitee, a director, officer, employee, agentthe Operative Documents which is not requested, or servant consented to, by the Lessee or is not required or made pursuant to the terms of any of the Operative Documents;
(i) constitutes the loss of future profits of such Indemnitee or any losses attributable to such AffiliateIndemnitee's overhead; or
(j) arises from or is attributable to the like-kind exchange transaction described in Section 10(b)(vi) of the Purchase Agreement to the extent such Claim exceeds the amount of Claim that would have been imposed in the absence of such like-kind exchange transaction.
Appears in 3 contracts
Sources: Aircraft Purchase Agreement (Republic Airways Holdings Inc), Aircraft Purchase Agreement (Republic Airways Holdings Inc), Aircraft Purchase Agreement (Republic Airways Holdings Inc)
Exceptions. Notwithstanding anything in Section 9.1(a)the foregoing, Borrower shall a Stockholder will not be required to indemnifycomply with Section 4.3(a) above in connection with any proposed Sale of the Company (the “Proposed Sale”), protect, defend or hold harmless any Indemnitee pursuant to Section 9.1(a) against any Expense of such Indemniteeunless:
(1i) for any Taxes representations and warranties to be made by such Stockholder in connection with the Proposed Sale are limited to representations and warranties related to authority, ownership and the ability to convey title to such Shares, including, but not limited to, representations and warranties that (a) the Stockholder holds all right, title and interest in and to the Shares such Stockholder purports to hold, free and clear of all liens and encumbrances, (b) the obligations of the Stockholder in connection with the transaction have been duly authorized, if applicable, (c) the documents to be entered into by the Stockholder have been duly executed by the Stockholder and delivered to the acquirer and are enforceable against the Stockholder in accordance with their respective terms, and (d) neither the execution and delivery of documents to be entered into in connection with the transaction, nor the performance of the Stockholder’s obligations thereunder, will cause a breach or a loss violation of Tax Benefitthe terms of any agreement, whether law or not Borrower is required to indemnify therefor pursuant to Section 9.3judgment, order or decree of any court or governmental agency;
(2ii) to such Stockholder shall not be liable for the extent attributable to any Transfer (voluntary or involuntary) by or on behalf of such Indemnitee of any Equipment Note, Commitment or interest therein, except for reasonable out-of-pocket costs and expenses incurred as a result of any such Transfer requested in writing by Borrower or made or effected as required by or pursuant to the terms of the Operative Agreements or made or effected in connection with or pursuant to the exercise of remedies under any Operative Agreement;
(3) to the extent attributable to the gross negligence or willful misconduct of such Indemnitee or any “Related Indemnitee” (as defined at the end of this Section 9.1(b)) (other than gross negligence or willful misconduct imputed to such Person solely by reason of its interest in the Aircraft or being party to any Operative Agreement);
(4) to the extent attributable to the incorrectness or breach inaccuracy of any representation or warranty of such Indemnitee or made by any Related Indemniteeother Person in connection with the Proposed Sale, contained in or made pursuant to any Operative Agreement;
other than the Company (5) except to the extent attributable that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the failure Company as well as breach by such Indemnitee or any Related Indemnitee to perform or observe any express agreement, covenant, or condition on its part to be performed or observed in any Operative Agreement;
(6) to the extent attributable to the offer or sale by such Indemnitee or any Related Indemnitee stockholder of any interest in the Equipment Notes or its Commitment in violation of the registration requirements of the Securities Act or in violation of the registration requirements of any applicable state or foreign securities Laws (other than any thereof caused identical representations, warranties and covenants provided by acts or omissions of Borrowerall stockholders);
(7iii) the liability for indemnification, if any, of such Stockholder in the Proposed Sale and for the inaccuracy of any representations and warranties made by the Company or its Stockholders in connection with such Proposed Sale, is several and not joint with any other Person (except to the extent attributable that funds may be paid out of an escrow established to Security Agentcover breach of representations, warranties and covenants of the Company as well as breach by any stockholder of any of identical representations, warranties and covenants provided by all stockholders), and subject to the provisions of the Certificate of Incorporation related to the allocation of the escrow, is pro rata in proportion to, and does not exceed, the amount of consideration paid to such Stockholder in connection with such Proposed Sale; and
(iv) upon the consummation of the Proposed Sale (i) each holder of each class or series of the Company’s failure stock will receive the same form of consideration for their shares of such class or series as is received by other holders in respect of their shares of such same class or series of stock, (ii) each holder of a series of Preferred Stock will receive the same amount of consideration per share of such series of Preferred Stock as is received by other holders in respect of their shares of such same series, (iii) each holder of Common Stock will receive the same amount of consideration per share of Common Stock as is received by other holders in respect of their shares of Common Stock, and (iv) unless the holders of a majority of the shares of Common Stock then issued or issuable upon conversion of the shares of Preferred Stock (to distribute funds received include the holders of a majority of the shares of Common Stock then issued or issuable upon conversion of the shares of Series D Convertible Preferred Stock) elect to receive a lesser amount by written notice given to the Company at least ten (10) days prior to the effective date of any such Proposed Sale, the aggregate consideration receivable by all holders of the Preferred Stock and distributable by it Common Stock shall be allocated among the holders of Preferred Stock and Common Stock on the basis of the relative liquidation preferences to which the holders of each respective series of Preferred Stock and the holders of Common Stock are entitled in a Deemed Liquidation Event (assuming for this purpose that the Proposed Sale is a Deemed Liquidation Event) in accordance with the Operative Agreements;
(8) other than during the existence Company’s Certificate of an Event of Default, Incorporation in effect immediately prior to the extent attributable Proposed Sale; provided, however, that, notwithstanding the foregoing, if the consideration to be paid in exchange for the authorization Key Holder Voting Securities or giving Preferred Stock, as applicable, pursuant to this Section 4.3(b)(iv) includes any securities and due receipt thereof by any Key Holder or withholding holder of Preferred Stock would require under applicable law (x) the registration or qualification of such securities or of any future amendments, supplements, waivers, person as a broker or consents with respect to any Operative Agreement, other than any requested by Borrower dealer or required by or made pursuant to the terms of the Operative Agreements (unless such requirement results from the actions of an Indemnitee not required by or made pursuant to the Operative Agreements);
(9) to the extent attributable to any amount which any Indemnitee expressly agrees to pay or such Indemnitee expressly agrees shall not be paid by or be reimbursed by Borrower;
(10) to the extent that it is an ordinary and usual operating or overhead expense;
(11) for any Lien attributable to such Indemnitee or any Related Indemnitee that Borrower is not obligated to discharge under the Operative Agreements;
(12) if another provision of an Operative Agreement specifies the extent of Borrower’s responsibility or obligation agent with respect to such Expensesecurities; or (y) the provision to any Key Holder or holder of Preferred Stock of any information other than such information as a prudent issuer would generally furnish in an offering made solely to “accredited investors” as defined in Regulation D promulgated under the Securities Act, the Company may cause to be paid to any such Key Holder or holder of Preferred Stock in lieu thereof, against surrender of the Key Holder Voting Securities or Preferred Stock, as applicable, which would have otherwise been sold by such Key Holder or holder of Preferred Stock, an amount in cash equal to the extent arising from a cause other than Borrower’s failure to comply with such specified responsibility or obligation; or
fair value (13) to as determined in good faith by the extent imposed on an Indemnitee as a result of any non-exempt “prohibited transaction” under 406(a) of ERISA or Section 4975(c)(1Company) of the Code caused by securities which such Indemnitee. For purposes Key Holder or holder of this Section 9.1, a Person shall be considered a “Related Indemnitee” Preferred Stock would otherwise receive as of an Indemnitee if that Person is an Affiliate or employer the date of the issuance of such Indemniteesecurities in exchange for the Key Holder Voting Securities or Preferred Stock, a director, officer, employee, agent, or servant of such Indemnitee or any such Affiliateas applicable.
Appears in 3 contracts
Sources: Stockholders Agreement (Centrexion Therapeutics Corp), Stockholders Agreement (Centrexion Therapeutics Corp), Stockholders Agreement (Centrexion Therapeutics Corp)
Exceptions. Notwithstanding anything The obligations of confidentiality, non-disclosure, and non-use set forth in Section 9.1(a), Borrower shall 14.1 (Generally) will not be required to indemnify, protect, defend or hold harmless any Indemnitee pursuant to Section 9.1(a) against any Expense of such Indemnitee:
(1) for any Taxes or a loss of Tax Benefit, whether or not Borrower is required to indemnify therefor pursuant to Section 9.3;
(2) apply to the extent attributable the receiving Party (the “Recipient”) can demonstrate that the disclosed information (a) was in the public domain at the time of disclosure to any Transfer (voluntary the Recipient by the other Party, or involuntary) by or on behalf of such Indemnitee of any Equipment Notethereafter entered the public domain, Commitment or interest thereinin each case, except for reasonable out-of-pocket costs and expenses incurred other than as a result of actions of the Recipient, its Affiliates, employees, licensees, agents, or subcontractors, in breach of this Agreement; (b) was rightfully known by the Recipient or its Affiliates (as shown by its written records) prior to the date of disclosure to the Recipient by the other Party; (c) was received by the Recipient or its Affiliates on an unrestricted basis from a Third Party rightfully in possession of such information and not under a duty of confidentiality to the other Party; or (d) was independently developed by or for the Recipient or its Affiliates without reference to or reliance on the Confidential Information of the other Party (as demonstrated by written records). Notwithstanding any other provision of this Agreement, the Recipient’s disclosure of Confidential Information will not be prohibited if such Transfer requested disclosure: (i) is in writing by Borrower response to a valid order of a court or made other Governmental Authority; or effected as (ii) is otherwise required by Applicable Law or pursuant regulation or rules of a nationally recognized securities exchange. Further notwithstanding any other provision of this Agreement, Akebia may disclose Licensee’s Confidential Information to the terms of the Operative Agreements or made or effected extent disclosure is required in connection with the filing or pursuant to the exercise of remedies under any Operative Agreement;
(3) to the extent attributable to the gross negligence or willful misconduct of such Indemnitee or any “Related Indemnitee” (as defined at the end of this Section 9.1(b)) (other than gross negligence or willful misconduct imputed to such Person solely by reason of its interest in the Aircraft or being party to any Operative Agreement);
(4) to the extent attributable to the incorrectness or breach of any representation or warranty of such Indemnitee or any Related Indemniteeprosecuting patent applications, contained in or made pursuant to any Operative Agreement;
(5) to the extent attributable to the failure by such Indemnitee or any Related Indemnitee to perform or observe any express agreement, covenantprosecuting, or condition on its part defending litigation, responding to be performed or observed in any Operative Agreement;
(6) to the extent attributable to the offer or sale an investigation by such Indemnitee or any Related Indemnitee of any interest in the Equipment Notes or its Commitment in violation of the registration requirements of the Securities Act or in violation of the registration requirements of any applicable state or foreign securities Laws (other than any thereof caused by acts or omissions of Borrower);
(7) to the extent attributable to Security Agent’s failure to distribute funds received and distributable by it in accordance with the Operative Agreements;
(8) other than during the existence of an Event of Default, to the extent attributable to the authorization or giving or withholding of any future amendments, supplements, waiversa Governmental Authority, or consents otherwise establishing rights or enforcing obligations under this Agreement, making Regulatory Filings with respect to any Operative Agreementthe Licensed Products, other than any requested by Borrower or required by conducting research, development, or made pursuant to the terms of the Operative Agreements (unless such requirement results from the actions of an Indemnitee not required by or made pursuant to the Operative Agreements);
(9) to the extent attributable to any amount which any Indemnitee expressly agrees to pay or such Indemnitee expressly agrees shall not be paid by or be reimbursed by Borrower;
(10) to the extent that it is an ordinary and usual operating or overhead expense;
(11) for any Lien attributable to such Indemnitee or any Related Indemnitee that Borrower is not obligated to discharge under the Operative Agreements;
(12) if another provision of an Operative Agreement specifies the extent of Borrower’s responsibility or obligation clinical studies with respect to such Expense, the Licensed Products. If a Recipient is required to the extent arising from a cause other than Borrower’s failure disclose Confidential Information pursuant to comply with such specified responsibility or obligation; or
(13) to the extent imposed on an Indemnitee as a result of any non-exempt “prohibited transaction” under 406(a) of ERISA or Section 4975(c)(1) of the Code caused by such Indemnitee. For purposes of this Section 9.114.2 (Exceptions), a Person shall be considered a “Related Indemnitee” of an Indemnitee if that Person is an Affiliate or employer then prior to any disclosure the Recipient will provide the other Party with prior written notice of such Indemnitee, disclosure in order to permit the other Party to seek a director, officer, employee, agent, protective order or servant other confidential treatment of such Indemnitee or any such AffiliateConfidential Information.
Appears in 3 contracts
Sources: License Agreement (Akebia Therapeutics, Inc.), License Agreement (Akebia Therapeutics, Inc.), License Agreement (Akebia Therapeutics, Inc.)
Exceptions. Notwithstanding anything in Section 9.1(a)the foregoing, Borrower shall a Stockholder will not be required to indemnify, protect, defend or hold harmless comply with Section 3.2 above in connection with any Indemnitee pursuant to Section 9.1(aproposed Sale of the Company (the “Proposed Sale”) against any Expense of such Indemniteeunless:
(1a) for any Taxes representations and warranties to be made by such Stockholder in connection with the Proposed Sale are limited to representations and warranties related to authority, ownership and the ability to convey title to such Shares, including but not limited to representations and warranties that (i) the Stockholder holds all right, title and interest in and to the Shares such Stockholder purports to hold, free and clear of all liens and encumbrances, (ii) the obligations of the Stockholder in connection with the transaction have been duly authorized, if applicable, (iii) the documents to be entered into by the Stockholder have been duly executed by the Stockholder and delivered to the acquirer and are enforceable against the Stockholder in accordance with their respective terms and (iv) neither the execution and delivery of documents to be entered into in connection with the transaction, nor the performance of the Stockholder’s obligations thereunder, will cause a breach or a loss violation of Tax Benefitthe terms of any agreement, whether law or not Borrower is required to indemnify therefor pursuant to Section 9.3judgment, order or decree of any court or governmental agency;
(2b) to the extent attributable to any Transfer (voluntary or involuntary) by or on behalf of such Indemnitee of any Equipment Note, Commitment or interest therein, except Stockholder shall not be liable for reasonable out-of-pocket costs and expenses incurred as a result of any such Transfer requested in writing by Borrower or made or effected as required by or pursuant to the terms of the Operative Agreements or made or effected in connection with or pursuant to the exercise of remedies under any Operative Agreement;
(3) to the extent attributable to the gross negligence or willful misconduct of such Indemnitee or any “Related Indemnitee” (as defined at the end of this Section 9.1(b)) (other than gross negligence or willful misconduct imputed to such Person solely by reason of its interest in the Aircraft or being party to any Operative Agreement);
(4) to the extent attributable to the incorrectness or breach inaccuracy of any representation or warranty of such Indemnitee or made by any Related Indemniteeother person in connection with the Proposed Sale, contained in or made pursuant to any Operative Agreement;
other than the Company (5) except to the extent attributable that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the failure Company as well as breach by such Indemnitee or any Related Indemnitee to perform or observe any express agreement, covenant, or condition on its part to be performed or observed in any Operative Agreement;
(6) to the extent attributable to the offer or sale by such Indemnitee or any Related Indemnitee stockholder of any interest in the Equipment Notes or its Commitment in violation of the registration requirements of the Securities Act or in violation of the registration requirements of any applicable state or foreign securities Laws (other than any thereof caused identical representations, warranties and covenants provided by acts or omissions of Borrowerall stockholders);
(7c) the liability for indemnification, if any, of such Stockholder in the Proposed Sale and for the inaccuracy of any representations and warranties made by the Company in connection with such Proposed Sale, is several and not joint with any other person or entity (except to the extent attributable that funds may be paid out of an escrow established to Security Agent’s failure cover breach of representations, warranties and covenants of the Company as well as breach by any stockholder of any of identical representations, warranties and covenants provided by all stockholders), and is pro rata in proportion to distribute funds received and distributable by it the amount of consideration paid to such Stockholder in connection with such Proposed Sale (in accordance with the Operative Agreements;
(8) other than during the existence of an Event of Default, to the extent attributable to the authorization or giving or withholding of any future amendments, supplements, waivers, or consents with respect to any Operative Agreement, other than any requested by Borrower or required by or made pursuant to the terms provisions of the Operative Agreements (unless such requirement results from the actions of an Indemnitee not required by or made pursuant to the Operative AgreementsCompany Charter);
(9d) liability shall be limited to such Stockholder’s applicable share (determined based on the extent attributable respective proceeds payable to any each Stockholder in connection with such Proposed Sale in accordance with the provisions of the Company Charter) of a negotiated aggregate indemnification amount that applies equally to all Stockholders but that in no event exceeds the amount of consideration otherwise payable to such Stockholder in connection with such Proposed Sale, except with respect to claims related to fraud by such Stockholder, the liability for which any Indemnitee expressly agrees to pay or such Indemnitee expressly agrees shall need not be paid by or be reimbursed by Borrowerlimited as to such Stockholder;
(10e) upon the consummation of the Proposed Sale, (i) each holder of each class or series of the Company’s stock will receive the same form of consideration for their shares of such class or series as is received by other holders in respect of their shares of such same class or series of stock, (ii) each holder of a series of Preferred Stock will receive the same amount of consideration per share of such series of Preferred Stock as is received by other holders in respect of their shares of such same series, (iii) each holder of Series BRN Preferred Stock will receive the same amount of consideration per share of such series as is received by other holders in respect of their shares of such same series, (iv) each holder of Common Stock will receive the same amount of consideration per share of Common Stock as is received by other holders in respect of their shares of Common Stock, and (v) the aggregate consideration receivable by all holders of the Preferred Stock and Common Stock shall be allocated among the holders of Preferred Stock and Common Stock on the basis of the relative liquidation preferences to which the holders of each respective series of Preferred Stock and the holders of Common Stock are entitled in a liquidation, dissolution or winding up of the affairs of the Company (assuming for this purpose that the Proposed Sale is a liquidation, dissolution or winding up of the affairs of the Company) in accordance with the Company Charter in effect immediately prior to the extent that it is an ordinary and usual operating or overhead expense;Proposed Sale; and
(11f) for any Lien attributable subject to such Indemnitee or any Related Indemnitee that Borrower is not obligated clause (e) above, requiring the same form of consideration to discharge under the Operative Agreements;
(12) if another provision of an Operative Agreement specifies the extent of Borrower’s responsibility or obligation with respect to such Expense, be available to the extent arising from a cause other than Borrower’s failure to comply with such specified responsibility holders of any single class or obligation; or
(13) series of capital stock, and if any holders of any capital stock of the Company are given an option as to the extent imposed on an Indemnitee form and amount of consideration to be received as a result of any non-exempt “prohibited transaction” under 406(a) of ERISA or Section 4975(c)(1) of the Code caused by such Indemnitee. For purposes of this Section 9.1Proposed Sale, a Person shall be considered a “Related Indemnitee” of an Indemnitee if that Person is an Affiliate or employer all holders of such Indemnitee, a director, officer, employee, agent, or servant of such Indemnitee or any such Affiliatecapital stock will be given the same option.
Appears in 3 contracts
Sources: Voting Agreement, Voting Agreement (BIND Therapeutics, Inc), Voting Agreement (BIND Therapeutics, Inc)
Exceptions. Notwithstanding anything in Section 9.1(a)Any other provision herein to the contrary notwithstanding, Borrower the Corporation shall not be required to indemnify, protect, defend or hold harmless any Indemnitee pursuant to Section 9.1(a) against any Expense of such Indemnitee:
(1) for any Taxes or a loss of Tax Benefit, whether or not Borrower is required to indemnify therefor pursuant to Section 9.3;
(2) to the extent attributable to any Transfer (voluntary or involuntary) by or on behalf of such Indemnitee of any Equipment Note, Commitment or interest therein, except for reasonable out-of-pocket costs and expenses incurred as a result of any such Transfer requested in writing by Borrower or made or effected as required by or obligated pursuant to the terms of this Agreement:
9.1 To indemnify or advance expenses to Indemnitee with respect to proceedings or claims initiated or brought voluntarily by Indemnitee and not by way of defense, except with respect to proceedings brought to establish or enforce a right to indemnification under this Agreement, the Operative Agreements Certificate of Incorporation, the Bylaws or made any statute or effected law or otherwise as required under Section 145 of the DGCL, but such indemnification or advancement of expenses may be provided by the Corporation in connection with specific cases if the Board of Directors has approved the initiation or pursuant to the exercise of remedies under any Operative Agreement;
(3) to the extent attributable to the gross negligence or willful misconduct bringing of such suit; or
9.2 To indemnify Indemnitee or for any “Related Indemnitee” (as defined at expenses incurred by the end of this Section 9.1(b)) (other than gross negligence or willful misconduct imputed to such Person solely by reason of its interest in the Aircraft or being party to any Operative Agreement);
(4) to the extent attributable to the incorrectness or breach of any representation or warranty of such Indemnitee or any Related Indemnitee, contained in or made pursuant to any Operative Agreement;
(5) to the extent attributable to the failure by such Indemnitee or any Related Indemnitee to perform or observe any express agreement, covenant, or condition on its part to be performed or observed in any Operative Agreement;
(6) to the extent attributable to the offer or sale by such Indemnitee or any Related Indemnitee of any interest in the Equipment Notes or its Commitment in violation of the registration requirements of the Securities Act or in violation of the registration requirements of any applicable state or foreign securities Laws (other than any thereof caused by acts or omissions of Borrower);
(7) to the extent attributable to Security Agent’s failure to distribute funds received and distributable by it in accordance with the Operative Agreements;
(8) other than during the existence of an Event of Default, to the extent attributable to the authorization or giving or withholding of any future amendments, supplements, waivers, or consents with respect to any Operative proceeding instituted by Indemnitee to enforce or interpret this Agreement, other than any requested by Borrower or required by or made pursuant to the terms if a court of competent jurisdiction determines that each of the Operative Agreements material assertions made by the Indemnitee in such proceeding was not made in good faith or was frivolous; or
9.3 To indemnify Indemnitee for expenses or liabilities of any type whatsoever (unless such requirement results from the actions of an Indemnitee including, but not required by limited to, judgments, fines, ERISA excise taxes or made pursuant to the Operative Agreementspenalties and amounts paid in settlement);
(9) , as and to the extent attributable to any amount which any Indemnitee expressly agrees to pay otherwise has actually received payment (under an insurance policy, by law or such Indemnitee expressly agrees shall not be paid by or be reimbursed by Borrower;
(10otherwise) to of the extent that it is an ordinary and usual operating or overhead expense;
(11) for any Lien attributable to such Indemnitee or any Related Indemnitee that Borrower is not obligated to discharge under the Operative Agreements;
(12) if another provision of an Operative Agreement specifies the extent of Borrower’s responsibility or obligation with respect to such Expense, to the extent arising from a cause other than Borrower’s failure to comply with such specified responsibility or obligationamounts otherwise indemnifiable hereunder; or
(13) to 9.4 To indemnify Indemnitee for expenses and the extent imposed on an payment of profits arising from the purchase and sale by Indemnitee as a result of any non-exempt “prohibited transaction” under 406(a) securities in violation of ERISA or Section 4975(c)(116(b) of the Code caused by such Indemnitee. For purposes Securities Exchange Act of this Section 9.11934, a Person shall be considered a “Related Indemnitee” of an Indemnitee if that Person is an Affiliate or employer of such Indemnitee, a director, officer, employee, agentas amended, or servant any similar successor statute; or
9.5 To indemnify Indemnitee for any act, omission or transaction listed in the exceptions to waiver of such Indemnitee or any such Affiliatepersonal liability of a director set forth in Section 102(b)(7) of the DGCL.
Appears in 3 contracts
Sources: Indemnification Agreement (Gelesis Inc), Indemnification Agreement (Lamar Advertising Co/New), Indemnification Agreement (Lamar Advertising REIT Co)
Exceptions. Notwithstanding anything in Section 9.1(a)Any other provision herein to the contrary notwithstanding, Borrower the Company shall not be required to indemnify, protect, defend or hold harmless any Indemnitee pursuant to Section 9.1(a) against any Expense of such Indemnitee:
(1) for any Taxes or a loss of Tax Benefit, whether or not Borrower is required to indemnify therefor pursuant to Section 9.3;
(2) to the extent attributable to any Transfer (voluntary or involuntary) by or on behalf of such Indemnitee of any Equipment Note, Commitment or interest therein, except for reasonable out-of-pocket costs and expenses incurred as a result of any such Transfer requested in writing by Borrower or made or effected as required by or obligated pursuant to the terms of this Agreement:
10.1 To indemnify for Losses or advance Expenses to Indemnitee with respect to proceedings or claims initiated or brought voluntarily by Indemnitee and not by way of defense, except with respect to proceedings brought to establish or enforce a right to indemnification under this Agreement, the Operative Agreements Company’s Certificate of Incorporation or made Bylaws or effected any other statute or law or otherwise as required or permitted under Section 145 of the GCL, but such indemnification of Losses or advancement of Expenses may be provided by the Company in connection with specific cases if the Board of Directors has approved the initiation or pursuant to the exercise of remedies under any Operative Agreement;
(3) to the extent attributable to the gross negligence or willful misconduct bringing of such suit; or
10.2 To indemnify Indemnitee for any Losses or any “Related Indemnitee” (as defined at Expenses incurred by the end of this Section 9.1(b)) (other than gross negligence or willful misconduct imputed to such Person solely by reason of its interest in the Aircraft or being party to any Operative Agreement);
(4) to the extent attributable to the incorrectness or breach of any representation or warranty of such Indemnitee or any Related Indemnitee, contained in or made pursuant to any Operative Agreement;
(5) to the extent attributable to the failure by such Indemnitee or any Related Indemnitee to perform or observe any express agreement, covenant, or condition on its part to be performed or observed in any Operative Agreement;
(6) to the extent attributable to the offer or sale by such Indemnitee or any Related Indemnitee of any interest in the Equipment Notes or its Commitment in violation of the registration requirements of the Securities Act or in violation of the registration requirements of any applicable state or foreign securities Laws (other than any thereof caused by acts or omissions of Borrower);
(7) to the extent attributable to Security Agent’s failure to distribute funds received and distributable by it in accordance with the Operative Agreements;
(8) other than during the existence of an Event of Default, to the extent attributable to the authorization or giving or withholding of any future amendments, supplements, waivers, or consents with respect to any Operative proceeding instituted by Indemnitee to enforce or interpret this Agreement, other than any requested by Borrower or required by or made pursuant to the terms if a court of competent jurisdiction determines that each of the Operative Agreements (unless material assertions made by the Indemnitee in such requirement results from the actions of an Indemnitee proceeding was not required by made in good faith or made pursuant to the Operative Agreements);
(9) to the extent attributable to any amount which any Indemnitee expressly agrees to pay or such Indemnitee expressly agrees shall not be paid by or be reimbursed by Borrower;
(10) to the extent that it is an ordinary and usual operating or overhead expense;
(11) for any Lien attributable to such Indemnitee or any Related Indemnitee that Borrower is not obligated to discharge under the Operative Agreements;
(12) if another provision of an Operative Agreement specifies the extent of Borrower’s responsibility or obligation with respect to such Expense, to the extent arising from a cause other than Borrower’s failure to comply with such specified responsibility or obligationwas frivolous; or
(13) to the extent imposed on an 10.3 To indemnify Indemnitee as a result for Expenses or liabilities or Losses of any non-exempt “prohibited transaction” type whatsoever (including, but not limited to, judgments, fines, ERISA excise taxes or penalties, and amounts paid in settlement) which have been paid directly to Indemnitee by an insurance carrier under 406(a) a policy of ERISA or officers’ and directors’ liability insurance maintained by the Company; or
10.4 To indemnify Indemnitee for Expenses and the payment of profits arising from the purchase and sale by Indemnitee of securities in violation of Section 4975(c)(116(b) of the Code caused by such Indemnitee. For purposes Securities Exchange Act of this Section 9.11934, a Person shall be considered a “Related Indemnitee” of an Indemnitee if that Person is an Affiliate or employer of such Indemnitee, a director, officer, employee, agentas amended, or servant any similar successor statute; or
10.5 To indemnify Indemnitee for any act, omission or transaction listed in the exceptions to waiver of such personal liability of a director set forth in Section 102(b)(7) of the GCL; or
10.6 To indemnify Indemnitee for Losses or advance Expenses for Indemnitee’s reimbursement to the Company of any bonus or other incentive-based or equity-based compensation previously received by Indemnitee or payment of any profits realized by Indemnitee from the sale of securities of the Company, as required in each case under the Exchange Act (including any such Affiliatereimbursements under Section 304 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 (the “▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act”) in connection with an accounting restatement of the Company or the payment to the Company of profits arising from the purchase or sale by Indemnitee of securities in violation of Section 306 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act).
Appears in 3 contracts
Sources: Employment Agreement (Newpark Resources Inc), Employment Agreement (Newpark Resources Inc), Indemnification Agreement (Newpark Resources Inc)
Exceptions. Notwithstanding anything BNPPLC acknowledges and agrees that nothing in Section 9.1(a), Borrower shall not Paragraph 4 or the preceding subparagraphs of this Paragraph 5 will be required construed to indemnify, protect, defend require NAI to pay or hold harmless reimburse: • Excluded Taxes; or • Losses incurred or suffered by any Indemnitee pursuant to Section 9.1(a) against any Expense of such Indemnitee:
(1) for any Taxes or a loss of Tax Benefit, whether or not Borrower is required to indemnify therefor pursuant to Section 9.3;
(2) Interested Party to the extent attributable to proximately caused by (and attributed by any Transfer applicable principles of comparative fault to) the Established Misconduct of that Interested Party; or • Losses that result from any Liens Removable by BNPPLC; or • transaction expenses (voluntary or involuntaryincluding Attorneys’ Fees) incurred by or on behalf of such Indemnitee of any Equipment Note, Commitment or interest therein, except for reasonable out-of-pocket costs and expenses incurred as a result of any such Transfer requested in writing by Borrower or made or effected as required by or pursuant to the terms of the Operative Agreements or made or effected Participants in connection with the drafting, negotiation or pursuant execution of the Participation Agreement (or supplements making them parties thereto) or in connection with any due diligence Participants may undertake before entering into the Participation Agreement; or • Local Impositions or other Losses contested, if and so long as they are contested, by NAI in accordance with any of the provisions of this Lease or other Operative Documents which expressly authorize such contests; or • transaction expenses or other Losses caused by or necessary to the exercise accomplish any conveyance by BNPPLC to BNPPLC’s Parent or a Qualified Affiliate which constitutes a Permitted Transfer only by reason of remedies under any Operative Agreement;
clause (3) of the definition of Permitted Transfer in the Common Definitions and Provisions Agreement; or • any amount which may from time to time be payable by BNPPLC to any Participant representing the extent attributable to the gross negligence or willful misconduct excess of such Indemnitee or any “Related IndemniteeBase Rent” (as defined at in the end Participation Agreement over Base Rent as defined in and calculated pursuant to this Lease and the Common Definitions and Provisions Agreement; or • any decline in the value of this Section 9.1(b)) (other than gross negligence or willful misconduct imputed to such Person the Property solely by reason of its interest decline in general market conditions and not because of any breach of this Lease or other Operative Documents by NAI. Further, without limiting BNPPLC’s rights (as provided in other provisions of this Lease and other Operative Documents) to include the following in the Aircraft or being party to any Operative Agreement);
(4) to the extent attributable to the incorrectness or breach of any representation or warranty of such Indemnitee or any Related Indemnitee, contained in or made pursuant to any Operative Agreement;
(5) to the extent attributable to the failure by such Indemnitee or any Related Indemnitee to perform or observe any express agreement, covenant, or condition on its part to be performed or observed in any Operative Agreement;
(6) to the extent attributable to the offer or sale by such Indemnitee or any Related Indemnitee of any interest in the Equipment Notes or its Commitment in violation calculation of the registration requirements Lease Balance, the Break Even Price and the Make Whole Amount (as applicable) or to collect Base Rent, a Supplemental Payment and other amounts, the calculation of which depends upon the Securities Act Lease Balance, BNPPLC acknowledges and agrees that nothing in Paragraph 4 or in violation the preceding subparagraphs of the registration requirements of any applicable state or foreign securities Laws (other than any thereof caused by acts or omissions of Borrower);
(7) this Paragraph 5 will be construed to the extent attributable to Security Agent’s failure to distribute funds received and distributable by it in accordance with the Operative Agreements;
(8) other than during the existence of an Event of Default, to the extent attributable to the authorization or giving or withholding of any future amendments, supplements, waivers, or consents with respect to any Operative Agreement, other than any requested by Borrower or required by or made pursuant to the terms of the Operative Agreements (unless such requirement results from the actions of an Indemnitee not required by or made pursuant to the Operative Agreements);
(9) to the extent attributable to any amount which any Indemnitee expressly agrees require NAI to pay or such Indemnitee expressly agrees shall not be reimburse an Interested Party for costs paid by or be reimbursed by Borrower;
(10) to BNPPLC with the extent that it is an ordinary and usual operating or overhead expense;
(11) for any Lien attributable to such Indemnitee or any Related Indemnitee that Borrower is not obligated to discharge under the Operative Agreements;
(12) if another provision of an Operative Agreement specifies the extent of Borrower’s responsibility or obligation with respect to such Expense, to the extent arising from a cause other than Borrower’s failure to comply with such specified responsibility or obligation; or
(13) to the extent imposed on an Indemnitee as a result of any non-exempt “prohibited transaction” under 406(a) of ERISA or Section 4975(c)(1) proceeds of the Code caused by such Indemnitee. For purposes Initial Advance as part of this Section 9.1, a Person shall be considered a “Related Indemnitee” of an Indemnitee if that Person is an Affiliate the Transaction Expenses or employer of such Indemnitee, a director, officer, employee, agent, or servant of such Indemnitee or any such Affiliatewith Construction Advances.
Appears in 3 contracts
Sources: Lease Agreement (NetApp, Inc.), Lease Agreement (NetApp, Inc.), Lease Agreement (NetApp, Inc.)
Exceptions. Notwithstanding anything in any provision of this Section 9.1(a34(a) to the contrary (other than with respect to the loss of Tax Savings for which a T-Mobile Group Member has reimbursed or credited Tower Operator under Section 34(c), Borrower in which case only the exceptions listed in clauses (C), (F) and (G) shall apply), Tower Operator shall not be required to indemnify, protect, defend or hold harmless make any payment to any Tax Indemnitee pursuant to Section 9.1(a) against in respect of any Expense of such Indemnitee:
(1) for any Taxes or a loss of Tax Benefit, whether or not Borrower is required to indemnify therefor pursuant to Section 9.3;
(2) Loss to the extent attributable to that any Transfer (voluntary or involuntary) by or on behalf of such Indemnitee of any Equipment Note, Commitment or interest therein, except for reasonable out-of-pocket costs and expenses incurred Tax Loss occurs as a result of one or more of the following:
(A) Other than as a result of an event or circumstance described in Section 34(a)(iii), the determination that this Agreement is not a “true lease” for federal income Tax purposes or that the members of the T-Mobile Group, directly or indirectly through one or more entities that are classified as partnerships or disregarded entities for federal income tax purposes, are not the owners or sublessors of the Included Property, or that Section 467 of the Code does not apply to this Agreement in accordance with its terms;
(B) The voluntary sale, assignment, transfer or other disposition or the involuntary sale, assignment, transfer or other disposition attributable to the bankruptcy, insolvency or the breach of any covenant or obligation of the Tax Indemnitee set forth in the Transaction Documents of or by any such Transfer requested Tax Indemnitee or any of its Affiliates, in writing by Borrower or made or effected as required by or pursuant to the terms either case, of any of the Operative Agreements Included Property or made portion of such Included Property by any such Tax Indemnitee or effected any of its Affiliates other than a sale, assignment, transfer or disposition (1) contemplated by the Transaction Documents or to or at the request of Tower Operator; (2) otherwise resulting from the exercise by any T-Mobile Group Member of its rights or performance of its obligations under the Transaction Documents; or (3) in connection with a default by Tower Operator or pursuant to the exercise of remedies under any Operative this Agreement;
(3C) to the extent attributable to the The gross negligence or willful misconduct of such Indemnitee Tax Indemnitee;
(D) Penalties, interest or additions to Tax to the extent based upon issues unrelated to the transactions contemplated by this Agreement and related documents;
(E) Tower Operator’s exercise of the Purchase Option provided in Section 20 or Section 29(b)(i);
(F) The failure by the T-Mobile Group or any “Related Indemnitee” T-Mobile Group Member timely or properly to claim any Federal Income Tax Benefits or to exclude income on the appropriate Tax return other than in accordance with Section 34(a)(iii);
(G) Any failure of the Tax Indemnitee to have taken all the actions, if any, required of it by Section 34(d) to contest the Loss and such failure materially prejudices the ability to contest, and Tower Operator had a reasonable basis for such contest;
(H) Any change in the Code enacted, adopted or promulgated on or after the date of the Master Agreement; provided that this exclusion shall not apply to any substitution or replacement of any Included Property after a change in Law;
(I) The failure of the T-Mobile Group, or any single T-Mobile Group Member, to have sufficient income or Tax liability to benefit from the Federal Income Tax Benefits (it being understood that except as defined provided herein, this exclusion shall not affect the amount of any indemnity to which an Indemnitee would otherwise be entitled);
(J) The inclusion of income by a T-Mobile Group Member as a result of the reversion of Modifications made by Tower Operator to any T-Mobile Lessor at the end of this Section 9.1(b)) (other than gross negligence or willful misconduct imputed to such Person solely by reason of its interest in the Aircraft or being party to any Operative Agreement)Term;
(4K) to Other than as a result of an event or circumstance described in Section 34(a)(iii), a determination that T-Mobile is not holding the extent attributable to Included Property in the incorrectness ordinary course of a trade or breach of any representation business or warranty of such Indemnitee or any Related Indemnitee, contained in or made pursuant to any Operative Agreementthat T-Mobile did not enter into the transactions contemplated by the Transaction Documents for profit;
(5L) to the extent attributable to the failure by such Indemnitee The existence of, or any Related Indemnitee to perform or observe any express agreementconsequence of, covenantthe prepayment of the Rent, or condition on its part to be performed or observed in any Operative Agreement;
(6) to the extent attributable to the offer or sale by such Indemnitee or any Related Indemnitee application of any interest in the Equipment Notes or its Commitment in violation Section 467 of the registration requirements of Code or the Securities Act or in violation of Treasury regulations promulgated thereunder; provided that the registration requirements of any applicable state or foreign securities Laws (other than any thereof caused by acts or omissions of Borrower);
(7) to the extent attributable to Security Agent’s failure to distribute funds received Tower Operator makes all payments when due and distributable by it accrues all rental expense in accordance with the Operative AgreementsProportional Rent as set forth in Exhibit D and provided, further, that this exclusion shall not apply to the entry into a New Lease under Section 21 following the default or breach by Tower Operator;
(8) other than during M) Any Tax election or Tax Position by a T-Mobile Group Member that is inconsistent with the existence of an Event of Default, Tax Assumptions to the extent attributable to of a resulting increase in the authorization or giving or withholding of any future amendments, supplements, waivers, or consents Tower Operator’s indemnity obligations hereunder;
(N) A Tax Loss with respect to any Operative Agreementperiod occurring (1) before the Term with respect to a Site, (2) after (and not simultaneously with) the expiration or earlier termination of the Term with respect to a Site or (3) after (and not simultaneously with) the return to T-Mobile of the Included Property related to a Site, in each case other than interest, fines, penalties and additions to Tax resulting from a Tax Loss that would not be excluded under this clause (N); and
(O) The breach or inaccuracy of any requested representation, warranty or covenant by Borrower or required by or made pursuant to the terms any T-Mobile Group Member in any of the Operative Agreements Transaction Documents (unless such requirement results from the actions of an Indemnitee not required by or made pursuant to the Operative Agreements);
(9) except to the extent attributable such breach or inaccuracy is attributed to a breach or inaccuracy of any amount which any Indemnitee expressly agrees to pay representation, warranty or such Indemnitee expressly agrees shall not be paid by covenant of Tower Operator or be reimbursed by Borrower;
(10) to the extent that it is an ordinary and usual operating or overhead expense;
(11) for any Lien attributable to such Indemnitee or any Related Indemnitee that Borrower is not obligated to discharge Affiliate under the Operative Agreements;
(12) if another provision of an Operative Agreement specifies the extent of Borrower’s responsibility or obligation with respect to such Expense, to the extent arising from a cause other than Borrower’s failure to comply with such specified responsibility or obligation; or
(13) to the extent imposed on an Indemnitee as a result of any non-exempt “prohibited transaction” under 406(a) of ERISA or Section 4975(c)(1) of the Code caused by such Indemnitee. For purposes of this Section 9.1, a Person shall be considered a “Related Indemnitee” of an Indemnitee if that Person is an Affiliate or employer of such Indemnitee, a director, officer, employee, agent, or servant of such Indemnitee or any such AffiliateTransaction Documents).
Appears in 2 contracts
Sources: Master Prepaid Lease (T-Mobile US, Inc.), Master Prepaid Lease (Crown Castle International Corp)
Exceptions. Notwithstanding anything in Section 9.1(a)the forgoing, Borrower shall a Stockholder will not be required to indemnify, protect, defend or hold harmless comply with Section 3.2 above in connection with any Indemnitee pursuant to Section 9.1(aproposed Sale of the Company (the “Proposed Sale”) against any Expense of such Indemniteeunless:
(1a) for any Taxes representations and warranties to be made by such Stockholder in connection with the Proposed Sale are limited to representations and warranties related to authority, ownership and the ability to convey title to such Shares, including but not limited to representations and warranties that (i) the Stockholder holds all right, title and interest in and to the Shares such Stockholder purports to hold, free and clear of all liens and encumbrances, (ii) the obligations of the Stockholder in connection with the transaction have been duly authorized, if applicable, (iii) the documents to be entered into by the Stockholder have been duly executed by the Stockholder and delivered to the acquirer and are enforceable against the Stockholder in accordance with their respective terms and (iv) neither the execution and delivery of documents to be entered into in connection with the transaction, nor the performance of the Stockholder’s obligations thereunder, will cause a breach or a loss violation of Tax Benefitthe terms of any agreement, whether law or not Borrower is required to indemnify therefor pursuant to Section 9.3judgment, order or decree of any court or governmental agency;
(2b) to the extent attributable to any Transfer (voluntary or involuntary) by or on behalf of such Indemnitee of any Equipment Note, Commitment or interest therein, except Stockholder shall not be liable for reasonable out-of-pocket costs and expenses incurred as a result of any such Transfer requested in writing by Borrower or made or effected as required by or pursuant to the terms of the Operative Agreements or made or effected in connection with or pursuant to the exercise of remedies under any Operative Agreement;
(3) to the extent attributable to the gross negligence or willful misconduct of such Indemnitee or any “Related Indemnitee” (as defined at the end of this Section 9.1(b)) (other than gross negligence or willful misconduct imputed to such Person solely by reason of its interest in the Aircraft or being party to any Operative Agreement);
(4) to the extent attributable to the incorrectness or breach inaccuracy of any representation or warranty of such Indemnitee or made by any Related Indemniteeother Person in connection with the Proposed Sale, contained in or made pursuant to any Operative Agreementother than the Company;
(5c) the liability for indemnification, if any, of such Stockholder in the Proposed Sale and for the inaccuracy of any representations and warranties made by the Company in connection with such Proposed Sale, is several and not joint with any other Person, and is pro rata in proportion to the extent attributable amount of consideration paid to such Stockholder in connection with such Proposed Sale (in accordance with the failure by such Indemnitee or any Related Indemnitee to perform or observe any express agreement, covenant, or condition on its part to be performed or observed in any Operative Agreement;
(6) to the extent attributable to the offer or sale by such Indemnitee or any Related Indemnitee of any interest in the Equipment Notes or its Commitment in violation provisions of the registration requirements of the Securities Act or in violation of the registration requirements of any applicable state or foreign securities Laws (other than any thereof caused by acts or omissions of BorrowerSecond Restated Certificate);
(7d) liability shall be limited to the extent attributable such Stockholder’s pro rata share (determined in proportion to Security Agent’s failure to distribute funds proceeds received and distributable by it such Stockholder in connection with such Proposed Sale in accordance with the Operative Agreementsprovisions of the Second Restated Certificate) of a negotiated aggregate indemnification amount that applies equally to all Stockholders but that in no event exceeds the amount of consideration actually paid to such Stockholder in connection with such Proposed Sale, except with respect to claims related to fraud by such Stockholder, the liability for which need not be limited as to such Stockholder;
(8) e) upon the consummation of the Proposed Sale, (i) each holder of each class or series of the Company’s stock will receive the same form of consideration for their shares of such class or series as is received by other than during holders in respect of their shares of such same class or series of stock, (ii) each holder of a series of Preferred Stock will receive the existence same amount of an Event consideration per share of Defaultsuch series of Preferred Stock, (iii) each holder of Common Stock will receive the same amount of consideration per share of Common Stock, and (iv) unless the holders of at least two-thirds of the Series A Preferred Stock and Series B Preferred Stock elect otherwise by written notice given to the extent attributable Company at least thirty (30) days prior to the authorization or giving or withholding effective date of any future amendmentssuch Proposed Sale, supplements, waivers, or consents the aggregate consideration receivable by all holders of the Preferred Stock and Common Stock shall be allocated among the holders of Preferred Stock and Common Stock on the basis of the relative liquidation preferences to which the holders of each respective series of Preferred Stock and the holders of Common Stock are entitled in a Deemed Liquidation Event (assuming for this purpose that the Proposed Sale is a Deemed Liquidation Event) in accordance with respect to any Operative Agreement, other than any requested by Borrower or required by or made pursuant the Company’s Certificate of Incorporation in effect immediately prior to the terms of the Operative Agreements (unless such requirement results from the actions of an Indemnitee not required by or made pursuant to the Operative Agreements);
(9) to the extent attributable to any amount which any Indemnitee expressly agrees to pay or such Indemnitee expressly agrees shall not be paid by or be reimbursed by Borrower;
(10) to the extent that it is an ordinary and usual operating or overhead expense;
(11) for any Lien attributable to such Indemnitee or any Related Indemnitee that Borrower is not obligated to discharge under the Operative Agreements;
(12) if another provision of an Operative Agreement specifies the extent of Borrower’s responsibility or obligation with respect to such Expense, to the extent arising from a cause other than Borrower’s failure to comply with such specified responsibility or obligationProposed Sale; or
(13) to the extent imposed on an Indemnitee as a result of any non-exempt “prohibited transaction” under 406(a) of ERISA or Section 4975(c)(1) of the Code caused by such Indemnitee. For purposes of this Section 9.1, a Person shall be considered a “Related Indemnitee” of an Indemnitee if that Person is an Affiliate or employer of such Indemnitee, a director, officer, employee, agent, or servant of such Indemnitee or any such Affiliate.and
Appears in 2 contracts
Sources: Voting Agreement (Anterios Inc), Voting Agreement (Anterios Inc)
Exceptions. Notwithstanding anything contained in Section 9.1(a)9.1.1, Borrower Lessee shall not be required to indemnify, protect, defend or and hold harmless any Indemnitee pursuant to Section 9.1(a) against 9.1.1 in respect of any Expense of such Indemnitee:
(1a) for For any Taxes or a loss of Tax Benefitbenefit, whether or not Borrower Lessee is required to indemnify therefor pursuant to Section 9.39.3 or the Tax Indemnity Agreement;
(2b) Except to the extent attributable to acts or events occurring prior thereto, acts or events (other than acts or events related to the performance by Lessee of its obligations pursuant to the terms of the Lessee Operative Agreements) that occur after the earliest of: (i) with respect to the Airframe, any Engine or any Part, the return of possession (it being understood that the date of the placement of the Aircraft in storage as provided in Section 5 of the Lease constitutes the date of return of the Aircraft under the Lease) of such Airframe, Engine or Part pursuant to the terms of and in compliance with the Lease (other than pursuant to Section 15 thereof, in which case Lessee's liability under this Section 9.1 shall survive for so long as Lessor shall be entitled to exercise remedies under such Section 15) or (ii) the termination of the Term in accordance with the Lease;
(c) To the extent attributable to any Transfer (voluntary or involuntary) by or on behalf of such Indemnitee of any Equipment Note, Commitment Note or interest therein, except (i) for reasonable out-of-pocket costs and expenses incurred as a result of any such Transfer requested in writing by Borrower or made or effected as required by or pursuant to the terms of the Operative Agreements or made or effected in connection with or pursuant to the exercise of remedies under any Operative AgreementAgreement resulting from a Lease Event of Default and (ii) as otherwise required by the terms of Section 2.13 of the Trust Indenture or Section 11 hereof;
(3d) To the extent attributable to any Transfer (voluntary or involuntary) by or on behalf of Owner Participant of any interest in the Aircraft, or the Trust Estate except for out-of-pocket costs and expenses incurred as a result of such Transfer, if, at the time of such Transfer, a Lease Event of Default shall have occurred and be continuing;
(e) To the extent attributable to the gross negligence or willful misconduct of such Indemnitee or any “Related Indemnitee” related Indemnitee (as defined at the end of this Section 9.1(b)below) (other than gross negligence or willful misconduct imputed to such Person solely person by reason of its interest in the Aircraft or being party to any Operative Agreement);
(4f) In the case of First Security, to the extent attributable to matters enumerated in the proviso to Section 14;
(g) To the extent attributable to the incorrectness or breach of any representation or warranty of such Indemnitee or any Related Indemnitee, related Indemnitee contained in or made pursuant to any Operative Agreement or any Pass Through Agreement;
(5h) to To the extent attributable to the failure by such Indemnitee or any Related related Indemnitee to perform or observe any express agreement, covenant, covenant or condition on its part to be performed or observed in any Operative Agreement or any Pass Through Agreement;
(6i) to To the extent attributable to the offer or sale by such Indemnitee or any Related related Indemnitee of any interest in the Aircraft, the Equipment Notes Notes, the Pass Through Trust Certificates, the Trust Estate or its Commitment the Trust Agreement or any similar interest, in violation of the registration requirements of the Securities Act or in violation of the registration requirements of any other applicable federal, state or foreign securities Laws (other than any thereof caused by the acts or omissions of BorrowerLessee);
(7i) With respect to any Indemnitee (other than Mortgagee), to the extent attributable to Security Agent’s the failure of the Mortgagee to distribute funds received and distributable by it in accordance with the Operative Trust Indenture, (ii) with respect to any Indemnitee (other than the Owner Trustee), to the extent attributable to the failure of the Owner Trustee to distribute funds received and distributable by it in accordance with the Trust Agreement, (iii) with respect to any Indemnitee (other than the Subordination Agent), to the extent attributable to the failure of the Subordination Agent to distribute funds received and distributable by it in accordance with the Intercreditor Agreement, (iv) with respect to any Indemnitee (other than the Pass Through Trustees), to the extent attributable to the failure of a Pass Through Trustee to distribute funds received and distributable by it in accordance with the Pass Through Trust Agreements;, (v) with respect to any Indemnitee (other than the Escrow Agent), to the extent attributable to the failure of the Escrow Agent to pay funds received and payable by it in accordance with any Escrow Agreement, (vi) with respect to any Indemnitee (other than the Paying Agent), to the extent attributable to the failure of the Paying Agent to distribute funds received and distributable by it in accordance with any Escrow Agreement, (vii) to the extent attributable to the failure of the Depositary to pay funds payable by it in accordance with any Deposit Agreement, (viii) with respect to Mortgagee, to the extent attributable to the negligence or willful misconduct of Mortgagee in the distribution of funds received and distributable by it in accordance with the Trust Indenture, (ix) with respect to Owner Trustee, to the extent attributable to the negligence or willful misconduct of Owner Trustee in the distribution of funds received and distributable by it in accordance with the Trust Agreement, (x) with respect to the Subordination Agent, to the extent attributable to the negligence or willful misconduct of the Subordination Agent in the distribution of funds received and distributable by it in accordance with the Intercreditor Agreement, (xi) with respect to the Pass Through Trustees, to the extent attributable to the negligence or willful misconduct of a Pass Through Trustee in the distribution of funds received and distributable by it in accordance with the Pass Through Trust Agreements, (xii) with respect to the Escrow Agent, to the extent attributable to the negligence or willful misconduct of the Escrow Agent in the payment of funds received and payable by it in accordance with any Escrow Agreement, and (xiii) with respect to the Paying Agent, to the extent attributable to the negligence or willful misconduct of the Paying Agent in the distribution of funds received and distributable by it in accordance with any Escrow Agreement.
(8) other k) Other than during the existence continuation of an a Lease Event of Default, to the extent attributable to the authorization or giving or withholding of any future amendments, supplements, waivers, waivers or consents with respect to any Operative Agreement, Agreement or Pass Through Agreement other than any such as have been requested by Borrower Lessee or as are required by or made pursuant to the terms of the Operative Agreements or Pass Through Agreements (unless such requirement results from the actions of an Indemnitee not required by or made pursuant to the Operative Agreements or the Pass Through Agreements);
(9l) to To the extent attributable to any amount which any Indemnitee expressly agrees to pay or such Indemnitee expressly agrees shall not be paid by or be reimbursed by BorrowerLessee;
(10m) to To the extent that it is an ordinary and usual operating or overhead expense;
(11n) for With respect to the Owner Participant or the Owner Trustee, or any related Indemnitee, to the extent attributable to the deregistration of the Aircraft under the Act as a result of Owner Participant's or Owner Trustee's (or any related Indemnitee of either) not being a Citizen of the United States as a result of any act (other than reregistration of the Aircraft pursuant to Section 7.1.2 of the Lease) of Owner Participant or Owner Trustee, or any related Indemnitee of either of the foregoing (not taken at the request of the Lessee);
(o) For any Lessor Lien attributable to such Indemnitee or any Related Indemnitee that Borrower is not obligated to discharge under the Operative Agreementsrelated Indemnitee;
(12p) if If another provision of an Operative Agreement or a Pass Through Agreement specifies the extent of Borrower’s Lessee's responsibility or obligation with respect to such Expense, to the extent arising from a cause other than Borrower’s failure of Lessee to comply with such specified responsibility or obligation; or;
(13q) to To the extent imposed constituting principal, Make-Whole Amount or interest on the Equipment Notes attributable solely to an Event of Default not constituting a Lease Event of Default;
(r) To the extent incurred by or asserted against an Indemnitee as a result of any non-exempt “"prohibited transaction” under 406(a) ", within the meaning of Section 406 of ERISA or Section 4975(c)(1) of the Code caused by Code; or
(s) To the extent not included in the definition of Supplemental Rent as a result of the provisions of clause (e) of such Indemniteedefinition. For purposes of this Section 9.1, a Person shall be considered a “Related Indemnitee” of "related" Indemnitee with respect to an Indemnitee if that such Person is an Affiliate or employer of such Indemnitee, a director, officer, employee, agent, or servant of such Indemnitee or any such AffiliateAffiliate or a successor or permitted assignee of any of the foregoing.
Appears in 2 contracts
Sources: Participation Agreement (Continental Airlines Inc /De/), Participation Agreement (Continental Airlines Inc /De/)
Exceptions. Notwithstanding anything in Section 9.1(a)the foregoing, Borrower shall a Stockholder will not be required to indemnifycomply with Section 3.2 above in connection with any proposed Sale of the Company (the “Proposed Sale”), protect, defend or hold harmless any Indemnitee pursuant to Section 9.1(a) against any Expense of such Indemniteeunless:
(1a) for any Taxes representations and warranties to be made by such Stockholder in connection with the Proposed Sale are limited to representations and warranties related to authority, ownership and the ability to convey title to such Shares, including, but not limited to, representations and warranties that (i) the Stockholder holds all right, title and interest in and to the Shares such Stockholder purports to hold, free and clear of all liens and encumbrances, (ii) the obligations of the Stockholder in connection with the transaction have been duly authorized, if applicable, (iii) the documents to be entered into by the Stockholder have been duly executed by the Stockholder and delivered to the acquirer and are enforceable against the Stockholder in accordance with their respective terms; and (iv) neither the execution and delivery of documents to be entered into in connection with the transaction, nor the performance of the Stockholder’s obligations thereunder, will cause a breach or a loss violation of Tax Benefitthe terms of any agreement, whether law or not Borrower is required to indemnify therefor pursuant to Section 9.3judgment, order or decree of any court or governmental agency;
(2b) to the extent attributable to any Transfer (voluntary or involuntary) by or on behalf of such Indemnitee of any Equipment Note, Commitment or interest therein, except Stockholder shall not be liable for reasonable out-of-pocket costs and expenses incurred as a result of any such Transfer requested in writing by Borrower or made or effected as required by or pursuant to the terms of the Operative Agreements or made or effected in connection with or pursuant to the exercise of remedies under any Operative Agreement;
(3) to the extent attributable to the gross negligence or willful misconduct of such Indemnitee or any “Related Indemnitee” (as defined at the end of this Section 9.1(b)) (other than gross negligence or willful misconduct imputed to such Person solely by reason of its interest in the Aircraft or being party to any Operative Agreement);
(4) to the extent attributable to the incorrectness or breach inaccuracy of any representation or warranty of such Indemnitee or made by any Related Indemniteeother Person in connection with the Proposed Sale, contained in or made pursuant to any Operative Agreement;
other than the Company (5) except to the extent attributable that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the failure Company as well as breach by such Indemnitee or any Related Indemnitee to perform or observe any express agreement, covenant, or condition on its part to be performed or observed in any Operative Agreement;
(6) to the extent attributable to the offer or sale by such Indemnitee or any Related Indemnitee stockholder of any interest in the Equipment Notes or its Commitment in violation of the registration requirements of the Securities Act or in violation of the registration requirements of any applicable state or foreign securities Laws (other than any thereof caused identical representations, warranties and covenants provided by acts or omissions of Borrowerall stockholders);
(7c) the liability for indemnification, if any, of such Stockholder in the Proposed Sale and for the inaccuracy of any representations and warranties made by the Company or its Stockholders in connection with such Proposed Sale, is several and not joint with any other Person (except to the extent attributable that funds may be paid out of an escrow established to Security Agentcover breach of representations, warranties and covenants of the Company as well as breach by any stockholder of any of identical representations, warranties and covenants provided by all stockholders), and subject to the provisions of the Restated Certificate related to the allocation of the escrow, is pro rata in proportion to, and does not exceed, the amount of consideration paid to such Stockholder in connection with such Proposed Sale;
(d) liability shall be limited to such Stockholder’s failure applicable share (determined based on the respective proceeds payable to distribute funds received and distributable by it each Stockholder in connection with such Proposed Sale in accordance with the Operative Agreementsprovisions of the Restated Certificate) of a negotiated aggregate indemnification amount that applies equally to all Stockholders but that in no event exceeds the amount of consideration otherwise payable to such Stockholder in connection with such Proposed Sale, except with respect to claims related to fraud by such Stockholder, the liability for which need not be limited as to such Stockholder;
(8) e) upon the consummation of the Proposed Sale (i) each holder of each class or series of the Company’s stock will receive the same form of consideration for their shares of such class or series as is received by other than during holders in respect of their shares of such same class or series of stock, (ii) each holder of a series of Series A Preferred Stock will receive the existence same amount of an Event consideration per share of Defaultsuch series of Series A Preferred Stock as is received by other holders in respect of their shares of such same series, (iii) each holder of Common Stock will receive the same amount of consideration per share of Common Stock as is received by other holders in respect of their shares of Common Stock, and (iv) unless the holders of at least a majority of the Series A Preferred Stock elect to receive a lesser amount by written notice given to the extent attributable Company at least five (5) days prior to the authorization or giving or withholding effective date of any future amendmentssuch Proposed Sale, supplementsthe aggregate consideration receivable by all holders of the Series A Preferred Stock and Common Stock shall be allocated among the holders of Series A Preferred Stock and Common Stock on the basis of the relative liquidation preferences to which the holders of each respective series of Series A Preferred Stock and the holders of Common Stock are entitled in a Deemed Liquidation Event (assuming for this purpose that the Proposed Sale is a Deemed Liquidation Event) in accordance with the Company’s Certificate of Incorporation in effect immediately prior to the Proposed Sale; provided, waivershowever, that, notwithstanding the foregoing, if the consideration to be paid in exchange for the Key Holder Shares or consents with respect to any Operative AgreementInvestor Shares, other than any requested by Borrower or required by or made as applicable, pursuant to this Section 3.3(e) includes any securities and due receipt thereof by any Key Holder or Investor would require under applicable law (x) the terms registration or qualification of the Operative Agreements (unless such requirement results from the actions securities or of an Indemnitee not required by any person as a broker or made pursuant to the Operative Agreements);
(9) to the extent attributable to any amount which any Indemnitee expressly agrees to pay dealer or such Indemnitee expressly agrees shall not be paid by or be reimbursed by Borrower;
(10) to the extent that it is an ordinary and usual operating or overhead expense;
(11) for any Lien attributable to such Indemnitee or any Related Indemnitee that Borrower is not obligated to discharge under the Operative Agreements;
(12) if another provision of an Operative Agreement specifies the extent of Borrower’s responsibility or obligation agent with respect to such Expensesecurities; or (y) the provision to any Key Holder or Investor of any information other than such information as a prudent issuer would generally furnish in an offering made solely to “accredited investors” as defined in Regulation D promulgated under the Securities Act, the Company may cause to be paid to any such Key Holder or Investor in lieu thereof, against surrender of the Key Holder Shares or Investor Shares, as applicable, which would have otherwise been sold by such Key Holder or Investor, an amount in cash equal to the extent arising from a cause other than Borrower’s failure to comply with fair value (as determined in good faith by the Company) of the securities which such specified responsibility Key Holder or obligationInvestor would otherwise receive as of the date of the issuance of such securities in exchange for the Key Holder Shares or Investor Shares, as applicable; orand
(13f) subject to clause (e) above, requiring the same form of consideration to be available to the extent imposed on holders of any single class or series of capital stock, if any holders of any capital stock of the Company are given an Indemnitee option as to the form and amount of consideration to be received as a result of any non-exempt “prohibited transaction” under 406(a) the Proposed Sale, all holders of ERISA or Section 4975(c)(1) of such capital stock will be given the Code caused by such Indemnitee. For purposes of same option; provided, however, that nothing in this Section 9.1, 3.3(f) shall entitle any holder to receive any form of consideration that such holder would be ineligible to receive as a Person shall be considered a “Related Indemnitee” of an Indemnitee if that Person is an Affiliate or employer result of such Indemniteeholder’s failure to satisfy any condition, a director, officer, employee, agent, requirement or servant of such Indemnitee or any such Affiliatelimitation that is generally applicable to the Company’s stockholders.
Appears in 2 contracts
Sources: Voting Agreement (Lantern Pharma Inc.), Voting Agreement (Lantern Pharma Inc.)
Exceptions. Notwithstanding anything in Section 9.1(a)the foregoing, Borrower shall a Stockholder will not be required to indemnifycomply with Subsection 7.1 above in connection with any proposed Sale of the Company (the “Proposed Sale”), protect, defend or hold harmless any Indemnitee pursuant to Section 9.1(a) against any Expense of such Indemniteeunless:
(1a) for any Taxes representations and warranties to be made by such Stockholder in connection with the Proposed Sale are limited to representations and warranties related to authority, ownership and the ability to convey title to such Shares, including, but not limited to, representations and warranties that (i) the Stockholder holds all right, title and interest in and to the Shares such Stockholder purports to hold, free and clear of all liens and encumbrances, (ii) the obligations of the Stockholder in connection with the transaction have been duly authorized, if applicable, (iii) the documents to be entered into by the Stockholder have been duly executed by the Stockholder and delivered to the acquirer and are enforceable against the Stockholder in accordance with their respective terms; and (iv) neither the execution and delivery of documents to be entered into in connection with the transaction, nor the performance of the Stockholder’s obligations thereunder, will cause a breach or a loss violation of Tax Benefitthe terms of any agreement, whether law or not Borrower is required to indemnify therefor pursuant to Section 9.3judgment, order or decree of any court or governmental agency;
(2b) to the extent attributable to any Transfer (voluntary or involuntary) by or on behalf of such Indemnitee of any Equipment Note, Commitment or interest therein, except Stockholder shall not be liable for reasonable out-of-pocket costs and expenses incurred as a result of any such Transfer requested in writing by Borrower or made or effected as required by or pursuant to the terms of the Operative Agreements or made or effected in connection with or pursuant to the exercise of remedies under any Operative Agreement;
(3) to the extent attributable to the gross negligence or willful misconduct of such Indemnitee or any “Related Indemnitee” (as defined at the end of this Section 9.1(b)) (other than gross negligence or willful misconduct imputed to such Person solely by reason of its interest in the Aircraft or being party to any Operative Agreement);
(4) to the extent attributable to the incorrectness or breach inaccuracy of any representation or warranty of such Indemnitee or made by any Related Indemniteeother Person in connection with the Proposed Sale, contained in or made pursuant to any Operative Agreement;
other than the Company (5) except to the extent attributable that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the failure Company as well as breach by such Indemnitee or any Related Indemnitee to perform or observe any express agreement, covenant, or condition on its part to be performed or observed in any Operative Agreement;
(6) to the extent attributable to the offer or sale by such Indemnitee or any Related Indemnitee stockholder of any interest in the Equipment Notes or its Commitment in violation of the registration requirements of the Securities Act or in violation of the registration requirements of any applicable state or foreign securities Laws (other than any thereof caused identical representations, warranties and covenants provided by acts or omissions of Borrowerall stockholders);
(7c) the liability for indemnification, if any, of such Stockholder in the Proposed Sale and for the inaccuracy of any representations and warranties made by the Company or its Stockholders in connection with such Proposed Sale, is several and not joint with any other Person (except to the extent attributable that funds may be paid out of an escrow established to Security Agentcover breach of representations, warranties and covenants of the Company as well as breach by any stockholder of any of identical representations, warranties and covenants provided by all stockholders), and subject to the provisions of the Certificate of Incorporation related to the allocation of the escrow, is pro rata in proportion to, and does not exceed, the amount of consideration paid to such Stockholder in connection with such Proposed Sale;
(d) upon the consummation of the Proposed Sale (i) each holder of each class or series of the Company’s failure stock will receive the same form of consideration for their shares of such class or series as is received by other holders in respect of their shares of such same class or series of stock, (ii) each holder of Common Stock will receive the same amount of consideration per share of Common Stock as is received by other holders in respect of their shares of Common Stock, and (iii) unless (A) the Requisite Preferred Holders and (B) the holders of a majority in voting power of the then outstanding shares of Series D Preferred Stock and Series D-1 Preferred Stock, voting separately as a class, elect to distribute funds received receive a lesser amount by written notice given to the Company at least three (3) days prior to the effective date of any such Proposed Sale, the aggregate consideration receivable by all holders of the Preferred Stock and distributable by it Common Stock shall be allocated among the holders of Preferred Stock and Common Stock on the basis of the relative liquidation preferences to which the holders of each respective series of Preferred Stock and the holders of Common Stock are entitled in a Deemed Liquidation Event (assuming for this purpose that the Proposed Sale is a Deemed Liquidation Event) in accordance with the Operative Agreements;
(8) other than during the existence Company’s Certificate of an Event of Default, Incorporation in effect immediately prior to the extent attributable Proposed Sale; provided, however, that, notwithstanding the foregoing, if the consideration to be paid in exchange for the authorization Key Holder Shares or giving Investor Shares, as applicable, pursuant to this Subsection 7.2(d) includes any securities and due receipt thereof by any Key Holder or withholding Investor would require under applicable law (x) the registration or qualification of such securities or of any future amendments, supplements, waivers, person as a broker or consents with respect to any Operative Agreement, other than any requested by Borrower dealer or required by or made pursuant to the terms of the Operative Agreements (unless such requirement results from the actions of an Indemnitee not required by or made pursuant to the Operative Agreements);
(9) to the extent attributable to any amount which any Indemnitee expressly agrees to pay or such Indemnitee expressly agrees shall not be paid by or be reimbursed by Borrower;
(10) to the extent that it is an ordinary and usual operating or overhead expense;
(11) for any Lien attributable to such Indemnitee or any Related Indemnitee that Borrower is not obligated to discharge under the Operative Agreements;
(12) if another provision of an Operative Agreement specifies the extent of Borrower’s responsibility or obligation agent with respect to such Expensesecurities; or (y) the provision to any Key Holder or Investor of any information other than such information as a prudent issuer would generally furnish in an offering made solely to “accredited investors” as defined in Regulation D promulgated under the Securities Act, the Company may cause to be paid to any such Key Holder or Investor in lieu thereof, against surrender of the Key Holder Shares or Investor Shares, as applicable, which would have otherwise been sold by such Key Holder or Investor, an amount in cash equal to the extent arising from a cause other than Borrower’s failure to comply with such specified responsibility or obligation; or
fair value (13) to as determined in good faith by the extent imposed on an Indemnitee as a result of any non-exempt “prohibited transaction” under 406(a) of ERISA or Section 4975(c)(1Company) of the Code caused by securities which such Indemnitee. For purposes Key Holder or Investor would otherwise receive as of this Section 9.1the date of the issuance of such securities in exchange for the Key Holder Shares or Investor Shares, as applicable; and
(e) no Stockholder that is a Person venture capital fund, investment fund or similar investment vehicle shall be considered a “Related Indemnitee” of an Indemnitee if that Person is an Affiliate required, in connection with such Proposed Sale, to enter into any agreements with non-competition, non-solicitation, non-hire provisions or employer of such Indemnitee, a director, officer, employee, agent, or servant of such Indemnitee or any such Affiliatesimilar restrictive covenants (other than customary covenants regarding confidentiality).
Appears in 2 contracts
Sources: Stockholders Agreement (Atea Pharmaceuticals, Inc.), Stockholders Agreement (Atea Pharmaceuticals, Inc.)
Exceptions. Notwithstanding anything in Section 9.1(a)the foregoing, Borrower shall a Stockholder will not be required to indemnifycomply with Section 3.2 above in connection with any proposed Sale of the Company (the “Proposed Sale”), protect, defend or hold harmless any Indemnitee pursuant to Section 9.1(a) against any Expense of such Indemniteeunless:
(1a) for any Taxes representations and warranties to be made by such Stockholder in connection with the Proposed Sale are limited to representations and warranties related to authority, ownership and the ability to convey title to such Shares, including, but not limited to, representations and warranties that (i) the Stockholder holds all right, title and interest in and to the Shares such Stockholder purports to hold, free and clear of all liens and encumbrances, (ii) the obligations of the Stockholder in connection with the transaction have been duly authorized, if applicable, (iii) the documents to be entered into by the Stockholder have been duly executed by the Stockholder and delivered to the acquirer and are enforceable against the Stockholder in accordance with their respective terms; and (iv) neither the execution and delivery of documents to be entered into in connection with the transaction, nor the performance of the Stockholder’s obligations thereunder, will cause a breach or a loss violation of Tax Benefitthe terms of any agreement, whether law or not Borrower is required to indemnify therefor pursuant to Section 9.3judgment, order or decree of any court or governmental agency;
(2b) to the extent attributable to any Transfer (voluntary or involuntary) by or on behalf of such Indemnitee of any Equipment Note, Commitment or interest therein, except Stockholder shall not be liable for reasonable out-of-pocket costs and expenses incurred as a result of any such Transfer requested in writing by Borrower or made or effected as required by or pursuant to the terms of the Operative Agreements or made or effected in connection with or pursuant to the exercise of remedies under any Operative Agreement;
(3) to the extent attributable to the gross negligence or willful misconduct of such Indemnitee or any “Related Indemnitee” (as defined at the end of this Section 9.1(b)) (other than gross negligence or willful misconduct imputed to such Person solely by reason of its interest in the Aircraft or being party to any Operative Agreement);
(4) to the extent attributable to the incorrectness or breach inaccuracy of any representation or warranty of such Indemnitee or made by any Related Indemniteeother Person in connection with the Proposed Sale, contained in or made pursuant to any Operative Agreement;
other than the Company (5) except to the extent attributable that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the failure Company as well as breach by such Indemnitee or any Related Indemnitee to perform or observe any express agreement, covenant, or condition on its part to be performed or observed in any Operative Agreement;
(6) to the extent attributable to the offer or sale by such Indemnitee or any Related Indemnitee stockholder of any interest in the Equipment Notes or its Commitment in violation of the registration requirements of the Securities Act or in violation of the registration requirements of any applicable state or foreign securities Laws (other than any thereof caused identical representations, warranties and covenants provided by acts or omissions of Borrowerall stockholders);
(7c) the liability for indemnification, if any, of such Stockholder in the Proposed Sale and for the inaccuracy of any representations and warranties made by the Company or its Stockholders in connection with such Proposed Sale, is several and not joint with any other Person (except to the extent attributable that funds may be paid out of an escrow established to Security Agentcover breach of representations, warranties and covenants of the Company as well as breach by any stockholder of any of identical representations, warranties and covenants provided by all stockholders), and subject to the provisions of the Restated Certificate related to the allocation of the escrow, is pro rata in proportion to, and does not exceed, the amount of consideration paid to such Stockholder in connection with such Proposed Sale;
(d) liability shall be limited to such Stockholder’s failure applicable share (determined based on the respective proceeds payable to distribute funds received and distributable by it each Stockholder in connection with such Proposed Sale in accordance with the Operative Agreementsprovisions of the Restated Certificate) of a negotiated aggregate indemnification amount that applies equally to all Stockholders subject to the immediately preceding parenthetical but that in no event exceeds the amount of consideration otherwise payable to such Stockholder in connection with such Proposed Sale, except with respect to claims related to actual fraud by such Stockholder, the liability for which need not be limited as to such Stockholder;
(8) e) upon the consummation of the Proposed Sale (i) each holder of each class or series of the Company’s stock will receive the same form of consideration for their shares of such class or series as is received by other than during holders in respect of their shares of such same class or series of stock, (ii) each holder of a series of Preferred Stock will receive the existence same amount of an Event consideration per share of Defaultsuch series of Preferred Stock as is received by other holders in respect of their shares of such same series, (iii) each holder of Common Stock will receive the same amount of consideration per share of Common Stock as is received by other holders in respect of their shares of Common Stock, and (iv) subject to clause (g) below, unless the holders of at least a majority of the Preferred Stock elect to receive a lesser amount by written notice given to the extent attributable Company at least ten (10) days prior to the authorization or giving or withholding effective date of any future amendmentssuch Proposed Sale, supplementsthe aggregate consideration receivable by all holders of the Preferred Stock and Common Stock shall be allocated among the holders of Preferred Stock and Common Stock on the basis of the relative liquidation preferences to which the holders of each respective series of Preferred Stock and the holders of Common Stock are entitled in a Deemed Liquidation Event (assuming and treating for this purpose that the Proposed Sale is a Deemed Liquidation Event) in accordance with the Company’s Certificate of Incorporation in effect immediately prior to the Proposed Sale; provided, waivershowever, that, notwithstanding the foregoing, if the consideration to be paid in exchange for the Key Holder Shares, Investor Shares or consents Common Stock Investor Shares, whether Preferred Stock or Common Stock, as applicable, pursuant to this Section 3.3(e) includes any securities and due receipt thereof by any Key Holder, Investor or Common Stock Investor would require under applicable law (x) the registration or qualification of such securities or of any person as a broker or dealer or agent with respect to such securities or (y) the provision to any Operative AgreementKey Holder, Investor or Common Stock Investor of any information other than such information as a prudent issuer would generally furnish in an offering made solely to “accredited investors” as defined in Regulation D promulgated under the Securities Act, the Company may cause to be paid to any such Key Holder, Investor or Common Stock Investor in lieu thereof, against surrender of the Key Holder Shares, Investor Shares or Common Stock Investor Shares, whether Preferred Stock or Common Stock, as applicable, which would have otherwise been sold by such Key Holder, Investor or Common Stock Investor, an amount in cash equal to the fair value (as determined in good faith by the Company) of the securities which such Key Holder, Investor or Common Stock Investor would otherwise receive as of the date of the issuance of such securities in exchange for the Key Holder Shares, Investor Shares or Common Stock Investor Shares, whether Preferred Stock or Common Stock, as applicable;
(f) subject to clause (e) above, requiring the same form of consideration to be available to the holders of any single class or series of capital stock, if any holders of any capital stock of the Company are given an option as to the form and amount of consideration to be received as a result of the Proposed Sale, all holders of such capital stock will be given the same option; provided, however, that nothing in this Section 3.3(f) shall entitle any holder to receive any form of consideration that such holder would be ineligible to receive as a result of such holder’s failure to satisfy any condition, requirement or limitation that is generally applicable to the Company’s stockholders;
(g) other than the covenant to the provide the indemnification described in clause (d) above and to deliver the shares of the Company at Closing (if applicable), other than any requested by Borrower or required by or made pursuant customary closing deliverables and other customary covenants reasonably necessary to facilitate the terms consummation of the Operative Agreements (unless Closing, no Stockholder shall be required to make any covenants as to such requirement results from Stockholder’s actions, business or operations or that would otherwise restrict the actions of an Indemnitee not required by such Stockholder (including, for example, any non-compete or made pursuant to the Operative Agreementssimilar provisions);
(9h) notwithstanding anything in this Agreement to the extent attributable contrary, if the consideration to any amount which any Indemnitee expressly agrees to pay or such Indemnitee expressly agrees shall not be paid by to the Series B Preferred Stock in connection with the Proposed Sale is less than $6.23 per share (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or be reimbursed by Borrower;other similar recapitalization), holders of a majority of the Series B Preferred Stock consent to the Proposed Sale; and
(10i) notwithstanding anything in this Agreement to the extent that it is an ordinary and usual operating or overhead expense;
(11) for any Lien attributable contrary, if the consideration to such Indemnitee or any Related Indemnitee that Borrower is not obligated to discharge under the Operative Agreements;
(12) if another provision of an Operative Agreement specifies the extent of Borrower’s responsibility or obligation with respect to such Expense, be paid to the extent arising from Series B-1 Preferred Stock in connection with the Proposed Sale is less than $6.75 per share (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization), holders of a cause other than Borrower’s failure to comply with such specified responsibility or obligation; or
(13) majority of the Series B-1 Preferred Stock consent to the extent imposed on an Indemnitee as a result of any non-exempt “prohibited transaction” under 406(a) of ERISA or Section 4975(c)(1) of the Code caused by such Indemnitee. For purposes of this Section 9.1, a Person shall be considered a “Related Indemnitee” of an Indemnitee if that Person is an Affiliate or employer of such Indemnitee, a director, officer, employee, agent, or servant of such Indemnitee or any such AffiliateProposed Sale.
Appears in 2 contracts
Sources: Preferred Stock Purchase Agreement (Ovid Therapeutics Inc.), Series B 1 Preferred Stock Purchase Agreement (Ovid Therapeutics Inc.)
Exceptions. Notwithstanding anything contained in Section 9.1(a)8.1.1, Borrower Owner shall not be required to indemnify, protect, defend or and hold harmless any Indemnitee pursuant to Section 9.1(a) against 8.1.1 in respect of any Expense of such Indemnitee:
(1a) for For any Taxes or a loss of Tax Benefitbenefit, whether or not Borrower Owner is required to indemnify therefor pursuant to Section 9.38.3;
(2b) Except to the extent attributable to acts or events occurring prior thereto, acts or events (other than acts or events related to the performance by Owner of its obligations pursuant to the terms of the Operative Agreements) that occur after the Trust Indenture is required to be terminated in accordance with Section 11.01 of the Trust Indenture; provided, that nothing in this clause (b) shall be deemed to exclude or limit any claim that any Indemnitee may have under applicable Law by reason of an Event of Default or for damages from Owner for breach of Owner's covenants contained in the Operative Agreements or to release Owner from any of its obligations under the Operative Agreements that expressly provide for performance after termination of the Trust Indenture;
(c) To the extent attributable to any Transfer (voluntary or involuntary) by or on behalf of such Indemnitee of any Equipment Note, Commitment Note or interest therein, except for reasonable out-of-pocket costs and expenses incurred as a result of any such Transfer requested in writing by Borrower or made or effected as required by or pursuant to the terms of the Operative Agreements or made or effected in connection with or pursuant to the exercise of remedies under any Operative Agreement;
(3d) to [Intentionally Omitted]
(e) To the extent attributable to the gross negligence or willful misconduct of such Indemnitee or any “Related Indemnitee” related Indemnitee (as defined at the end of this Section 9.1(b)below) (other than gross negligence or willful misconduct imputed to such Person solely person by reason of its interest in the Aircraft or being party to any Operative Agreement);
(4f) to [Intentionally Omitted]
(g) To the extent attributable to the incorrectness or breach of any representation or warranty of such Indemnitee or any Related Indemnitee, related Indemnitee contained in or made pursuant to any Operative Agreement or any Pass Through Agreement;
(5h) to To the extent attributable to the failure by such Indemnitee or any Related related Indemnitee to perform or observe any express agreement, covenant, covenant or condition on its part to be performed or observed in any Operative Agreement or any Pass Through Agreement;
(6i) to To the extent attributable to the offer or sale by such Indemnitee or any Related related Indemnitee of any interest in the Aircraft, the Equipment Notes Notes, the Pass Through Certificates, or its Commitment any similar interest, in violation of the registration requirements of the Securities Act or in violation of the registration requirements of any other applicable federal, state or foreign securities Laws (other than any thereof caused by acts or omissions of BorrowerOwner);
(7i) With respect to any Indemnitee (other than Mortgagee), to the extent attributable to Security Agent’s the failure of the Mortgagee to distribute funds received and distributable by it in accordance with the Operative Trust Indenture, (ii) with respect to any Indemnitee (other than the Subordination Agent), to the extent attributable to the failure of the Subordination Agent to distribute funds received and distributable by it in accordance with the Intercreditor Agreement, (iii) with respect to any Indemnitee (other than the Pass Through Trustees), to the extent attributable to the failure of a Pass Through Trustee to distribute funds received and distributable by it in accordance with the Pass Through Trust Agreements, (iv) with respect to any Indemnitee (other than the Escrow Agent), to the extent attributable to the failure of the Escrow Agent to pay funds received and payable by it in accordance with any Escrow Agreement, (v) with respect to any Indemnitee (other than the Paying Agent), to the extent attributable to the failure of the Paying Agent to distribute funds received and distributable by it in accordance with any Escrow Agreement, (vi) to the extent attributable to the failure of the Depositary to pay funds payable by it in accordance with any Deposit Agreement, (vii) with respect to Mortgagee, to the extent attributable to the negligence or willful misconduct of Mortgagee in the distribution of funds received and distributable by it in accordance with the Trust Indenture, (viii) with respect to the Subordination Agent, to the extent attributable to the negligence or willful misconduct of the Subordination Agent in the distribution of funds received and distributable by it in accordance with the Intercreditor Agreement, (ix) with respect to the Pass Through Trustees, to the extent attributable to the negligence or willful misconduct of a Pass Through Trustee in the distribution of funds received and distributable by it in accordance with the Pass Through Trust Agreements, (x) with respect to the Escrow Agent, to the extent attributable to the negligence or willful misconduct of the Escrow Agent in the payment of funds received and payable by it in accordance with any Escrow Agreement, and (xi) with respect to the Paying Agent, to the extent attributable to the negligence or willful misconduct of the Paying Agent in the distribution of funds received and distributable by it in accordance with any Escrow Agreement;
(8) other k) Other than during the existence continuation of an Event of Default, to the extent attributable to the authorization or giving or withholding of any future amendments, supplements, waivers, waivers or consents with respect to any Operative Agreement, Agreement or Pass Through Agreement other than any such as have been requested or consented to in writing by Borrower Owner or as are required by or made pursuant to the terms of the Operative Agreements or Pass Through Agreements (unless such requirement results from the actions of an Indemnitee not required by or made pursuant to the Operative Agreements or the Pass Through Agreements);
(9l) to To the extent attributable to any amount which any Indemnitee expressly agrees to pay or such Indemnitee expressly agrees shall not be paid by or be reimbursed by BorrowerOwner;
(10m) to To the extent that it such expense is a loss of future profits of, a cost or expense unreasonably incurred by, or an ordinary and usual operating or overhead expenseexpense of, such Indemnitee;
(11n) for [Intentionally Omitted]
(o) For any Lien in violation of the Operative Agreements attributable to such Indemnitee or any Related Indemnitee that Borrower is not obligated to discharge under the Operative Agreementsrelated Indemnitee;
(12p) if If another provision of an Operative Agreement or a Pass Through Agreement specifies the extent of Borrower’s Owner's responsibility or obligation with respect to such Expense, to the extent arising from a cause other than Borrower’s failure of Owner to comply with such specified responsibility or obligation; or;
(13q) to To the extent imposed on incurred by or asserted against an Indemnitee as a result of any non-exempt “"prohibited transaction” under 406(a) ", within the meaning of Section 406 of ERISA or Section 4975(c)(1) of the Code caused by such IndemniteeCode; or
(r) For any loss attributable to, arising from or in connection with any inspections or inspection rights arising from or in connection with any of the Operative Agreements or the Transactions. For purposes of this Section 9.18.1, a Person shall be considered a “Related Indemnitee” of "related" Indemnitee with respect to an Indemnitee if that such Person is an Affiliate or employer of such Indemnitee, a director, officer, employee, agent, or servant of such Indemnitee or any such AffiliateAffiliate or a successor or permitted assignee of any of the foregoing.
Appears in 2 contracts
Sources: Participation Agreement (Atlas Air Inc), Participation Agreement (Atlas Air Inc)
Exceptions. Notwithstanding anything in Section 9.1(a)the forgoing, Borrower shall a Stockholder will not be required to indemnify, protect, defend or hold harmless comply with Section 3.1 above in connection with any Indemnitee pursuant to Section 9.1(aproposed Sale of the Company (the “Proposed Sale”) against any Expense of such Indemniteeunless:
(1a) for any Taxes representations and warranties to be made by such Stockholder in connection with the Proposed Sale are limited to representations and warranties related to authority, ownership and the ability to convey title to such Shares, including but not limited to representations and warranties that (i) the Stockholder holds all right, title and interest in and to the Shares such Stockholder purports to hold, free and clear of all liens and encumbrances, (ii) the obligations of the Stockholder in connection with the transaction have been duly authorized, if applicable, (iii) the documents to be entered into by the Stockholder have been duly executed by the Stockholder and delivered to the acquirer and are enforceable against the Stockholder in accordance with their respective terms and (iv) neither the execution and delivery of documents to be entered into in connection with the transaction, nor the performance of the Stockholder’s obligations thereunder, will cause a breach or a loss violation of Tax Benefitthe terms of any agreement, whether law or not Borrower is required to indemnify therefor pursuant to Section 9.3judgment, order or decree of any court or governmental agency;
(2b) to the extent attributable to any Transfer (voluntary or involuntary) by or on behalf of such Indemnitee of any Equipment Note, Commitment or interest therein, except Stockholder shall not be liable for reasonable out-of-pocket costs and expenses incurred as a result of any such Transfer requested in writing by Borrower or made or effected as required by or pursuant to the terms of the Operative Agreements or made or effected in connection with or pursuant to the exercise of remedies under any Operative Agreement;
(3) to the extent attributable to the gross negligence or willful misconduct of such Indemnitee or any “Related Indemnitee” (as defined at the end of this Section 9.1(b)) (other than gross negligence or willful misconduct imputed to such Person solely by reason of its interest in the Aircraft or being party to any Operative Agreement);
(4) to the extent attributable to the incorrectness or breach inaccuracy of any representation or warranty of such Indemnitee or made by any Related Indemniteeother Person in connection with the Proposed Sale, contained in or made pursuant to any Operative Agreementother than the Company;
(5c) the liability for indemnification, if any, of such Stockholder in the Proposed Sale and for the inaccuracy of any representations and warranties made by the Company in connection with such Proposed Sale, is several and not joint with any other Person, and is pro rata in proportion to the extent attributable amount of consideration paid to such Stockholder in connection with such Proposed Sale (in accordance with the failure by such Indemnitee or any Related Indemnitee to perform or observe any express agreement, covenant, or condition on its part to be performed or observed in any Operative Agreement;
(6) to the extent attributable to the offer or sale by such Indemnitee or any Related Indemnitee of any interest in the Equipment Notes or its Commitment in violation provisions of the registration requirements of the Securities Act or in violation of the registration requirements of any applicable state or foreign securities Laws (other than any thereof caused by acts or omissions of BorrowerRestated Certificate);
(7d) liability shall be limited to the extent attributable such Stockholder’s pro rata share (determined in proportion to Security Agent’s failure to distribute funds proceeds received and distributable by it such Stockholder in connection with such Proposed Sale in accordance with the Operative Agreementsprovisions of the Restated Certificate) of a negotiated aggregate indemnification amount that applies equally to all Stockholders but that in no event exceeds the amount of consideration actually paid to such Stockholder in connection with such Proposed Sale, except with respect to claims related to fraud by such Stockholder, the liability for which need not be limited as to such Stockholder;
(8) other than during e) upon the existence consummation of the Proposed Sale, (i) each holder of each series of the Company’s Preferred Stock and each holder of Common Stock will, subject to Section 3.1(g), receive the same form of consideration for their shares of Common Stock and Preferred Stock, (ii) each holder of a series of Preferred Stock will receive the same amount of consideration per share of such series of Preferred Stock, (iii) each holder of Common Stock will receive the same amount of consideration per share of Common Stock, and (iv) unless the holders of at least a majority of the then outstanding shares of Series A Preferred Stock, Series B Preferred Stock and Series C Preferred Stock, voting together as a single class on an Event of Defaultas-converted basis, elect otherwise by written notice given to the extent attributable to the authorization or giving or withholding of any future amendments, supplements, waivers, or consents with respect to any Operative Agreement, other than any requested by Borrower or required by or made pursuant to the terms of the Operative Agreements (unless such requirement results from the actions of an Indemnitee not required by or made pursuant to the Operative Agreements);
(9) to the extent attributable to any amount which any Indemnitee expressly agrees to pay or such Indemnitee expressly agrees shall not be paid by or be reimbursed by Borrower;
Company at least ten (10) days prior to the extent effective date of any such Proposed Sale, the aggregate consideration receivable by all holders of the Preferred Stock and Common Stock shall be allocated among the holders of Preferred Stock and Common Stock on the basis of the relative liquidation preferences to which the holders of each respective series of Preferred Stock and the holders of Common Stock are entitled in a Deemed Liquidation Event (assuming for this purpose that it the Proposed Sale is an ordinary and usual operating or overhead expense;a Deemed Liquidation Event) in accordance with the Restated Certificate; and
(11f) for subject to clause (e) above, requiring the same form of consideration to be received by the holders of the Company’s Common Stock and Preferred Stock, if any Lien attributable to such Indemnitee or holders of any Related Indemnitee that Borrower is not obligated to discharge under capital stock of the Operative Agreements;
(12) if another provision of Company are given an Operative Agreement specifies the extent of Borrower’s responsibility or obligation with respect to such Expense, option as to the extent arising from a cause other than Borrower’s failure form and amount of consideration to comply with such specified responsibility or obligation; or
(13) to the extent imposed on an Indemnitee be received as a result of any non-exempt “prohibited transaction” under 406(a) of ERISA or Section 4975(c)(1) of the Code caused by such Indemnitee. For purposes of this Section 9.1Proposed Sale, a Person shall be considered a “Related Indemnitee” of an Indemnitee if that Person is an Affiliate or employer all holders of such Indemnitee, a director, officer, employee, agent, or servant of such Indemnitee or any such Affiliatecapital stock will be given the same option.
Appears in 2 contracts
Sources: Stockholders Agreement (Blueprint Medicines Corp), Stockholders Agreement
Exceptions. Notwithstanding anything contained in Section 9.1(a)9.1.1, Borrower Lessee shall not be required to indemnify, protect, defend or and hold harmless any Indemnitee pursuant to Section 9.1(a) against 9.1.1 in respect of any Expense of such Indemnitee:
(1a) for For any Taxes or a loss of Tax Benefitbenefit, whether or not Borrower Lessee is required to indemnify therefor pursuant to Section 9.39.3 or the Tax Indemnity Agreement;
(2b) Except to the extent attributable to acts or events occurring prior thereto, acts or events (other than acts or events related to the performance by Lessee of its obligations pursuant to the terms of the Lessee Operative Agreements) that occur after the earliest of: (i) with respect to the Airframe, any Engine or any Part, the return of possession (it being understood that the date of the placement of the Aircraft in storage as provided in Section 5 of the Lease constitutes the date of return of the Aircraft under the Lease) of such Airframe, Engine or Part pursuant to the terms of and in compliance with the Lease (other than pursuant to Section 15 thereof, in which case Lessee's liability under this Section 9.1 shall survive for so long as Lessor shall be entitled to exercise remedies under such Section 15) or (ii) the termination of the Term in accordance with the Lease;
(c) To the extent attributable to any Transfer (voluntary or involuntary) by or on behalf of such Indemnitee of any Equipment Note, Commitment Note or interest therein, except (i) for reasonable out-of-pocket costs and expenses incurred as a result of any such Transfer requested in writing by Borrower or made or effected as required by or pursuant to the terms of the Operative Agreements or made or effected in connection with or pursuant to the exercise of remedies under any Operative AgreementAgreement resulting from a Lease Event of Default and (ii) as otherwise required by the terms of Section 2.13 of the Trust Indenture or Section 11 hereof;
(3d) To the extent attributable to any Transfer (voluntary or involuntary) by or on behalf of Owner Participant of any interest in the Aircraft, or the Trust Estate except for out-of-pocket costs and expenses incurred as a result of such Transfer, if, at the time of such Transfer, a Lease Event of Default shall have occurred and be continuing;
(e) To the extent attributable to the gross negligence or willful misconduct of such Indemnitee or any “Related Indemnitee” related Indemnitee (as defined at the end of this Section 9.1(b)below) (other than gross negligence or willful misconduct imputed to such Person solely person by reason of its interest in the Aircraft or being party to any Operative Agreement);
(4f) In the case of First Security, to the extent attributable to matters enumerated in the proviso to Section 14;
(g) To the extent attributable to the incorrectness or breach of any representation or warranty of such Indemnitee or any Related Indemnitee, related Indemnitee contained in or made pursuant to any Operative Agreement or any Pass Through Agreement;
(5h) to To the extent attributable to the failure by such Indemnitee or any Related related Indemnitee to perform or observe any express agreement, covenant, covenant or condition on its part to be performed or observed in any Operative Agreement or any Pass Through Agreement;
(6i) to To the extent attributable to the offer or sale by such Indemnitee or any Related related Indemnitee of any interest in the Aircraft, the Equipment Notes Notes, the Pass Through Trust Certificates, the Trust Estate or its Commitment the Trust Agreement or any similar interest, in violation of the registration requirements of the Securities Act or in violation of the registration requirements of any other applicable federal, state or foreign securities Laws (other than any thereof caused by the acts or omissions of BorrowerLessee);
(7i) With respect to any Indemnitee (other than Mortgagee), to the extent attributable to Security Agent’s the failure of the Mortgagee to distribute funds received and distributable by it in accordance with the Operative Trust Indenture, (ii) with respect to any Indemnitee (other than the Owner Trustee), to the extent attributable to the failure of the Owner Trustee to distribute funds received and distributable by it in accordance with the Trust Agreement, (iii) with respect to any Indemnitee (other than the Subordination Agent), to the extent attributable to the failure of the Subordination Agent to distribute funds received and distributable by it in accordance with the Intercreditor Agreement, (iv) with respect to any Indemnitee (other than the Pass Through Trustees), to the extent attributable to the failure of a Pass Through Trustee to distribute funds received and distributable by it in accordance with the Pass Through Trust Agreements;, (v) with respect to any Indemnitee (other than the Escrow Agent), to the extent attributable to the failure of the Escrow Agent to pay funds received and payable by it in accordance with any Escrow Agreement, (vi) with respect to any Indemnitee (other than the Paying Agent), to the extent attributable to the failure of the Paying Agent to distribute funds received and distributable by it in accordance with any Escrow Agreement, (vii) to the extent attributable to the failure of the Depositary to pay funds payable by it in accordance with any Deposit Agreement, (viii) with respect to Mortgagee, to the extent attributable to the negligence or willful misconduct of Mortgagee in the distribution of funds received and distributable by it in accordance with the Trust Indenture, (ix) with respect to Owner Trustee, to the extent attributable to the negligence or willful misconduct of Owner Trustee in the distribution of funds received and distributable by it in accordance with the Trust Agreement, (x) with respect to the Subordination Agent, to the extent attributable to the negligence or willful misconduct of the Subordination Agent in the distribution of funds received and distributable by it in accordance with the Intercreditor Agreement, (xi) with respect to the Pass Through Trustees, to the extent attributable to the negligence or willful misconduct of a Pass Through Trustee in the distribution of funds received and distributable by it in accordance with the Pass Through Trust Agreements, (xii) with respect to the Escrow Agent, to the extent attributable to the negligence or willful misconduct of the Escrow Agent in the payment of funds received and payable by it in accordance with any Escrow Agreement, and (xiii) with respect to the Paying Agent, to the extent attributable to the negligence or willful misconduct of the Paying Agent in the distribution of funds received and distributable by it in accordance with any Escrow Agreement.
(8) other k) Other than during the existence continuation of an a Lease Event of Default, to the extent attributable to the authorization or giving or withholding of any future amendments, supplements, waivers, waivers or consents with respect to any Operative Agreement, Agreement or Pass Through Agreement other than any such as have been requested by Borrower Lessee or as are required by or made pursuant to the terms of the Operative Agreements or Pass Through Agreements (unless such requirement results from the actions of an Indemnitee not required by or made pursuant to the Operative Agreements or the Pass Through Agreements);
(9l) to To the extent attributable to any amount which any Indemnitee expressly agrees to pay or such Indemnitee expressly agrees shall not be paid by or be reimbursed by BorrowerLessee;
(10m) to To the extent that it is an ordinary and usual operating or overhead expense;
(11n) for With respect to the Owner Participant or the Owner Trustee, or any related Indemnitee, to the extent attributable to the deregistration of the Aircraft under the Act as a result of Owner Participant's or Owner Trustee's (or any related Indemnitee of either) not being a Citizen of the United States as a result of any act (other than reregistration of the Aircraft pursuant to Section 7.1.2 of the Lease) of Owner Participant or Owner Trustee, or any related Indemnitee of either of the foregoing (not taken at the request of the Lessee);
(o) For any Lessor Lien attributable to such Indemnitee or any Related Indemnitee that Borrower is not obligated to discharge under the Operative Agreementsrelated Indemnitee;
(12p) if If another provision of an Operative Agreement or a Pass Through Agreement specifies the extent of Borrower’s Lessee's responsibility or obligation with respect to such Expense, to the extent arising from a cause other than Borrower’s failure of Lessee to comply with such specified responsibility or obligation;
(q) To the extent constituting principal, Make-Whole Amount or interest on the Equipment Notes attributable solely to an Event of Default not constituting a Lease Event of Default; or
(13r) to To the extent imposed on incurred by or asserted against an Indemnitee as a result of any non-exempt “"prohibited transaction” under 406(a) ", within the meaning of Section 406 of ERISA or Section 4975(c)(1) of the Code caused by such Indemnitee. For purposes of this Section 9.1, a Person shall be considered a “Related Indemnitee” of an Indemnitee if that Person is an Affiliate or employer of such Indemnitee, a director, officer, employee, agent, or servant of such Indemnitee or any such Affiliate.)
Appears in 2 contracts
Sources: Participation Agreement (Continental Airlines Inc /De/), Participation Agreement (Continental Airlines Inc /De/)
Exceptions. Notwithstanding anything in Section 9.1(a)the foregoing, Borrower shall a Shareholder will not be required to indemnify, protect, defend or hold harmless comply with Section 5.01(a) in connection with any Indemnitee pursuant to Section 9.1(a) against any Expense proposed Change of such IndemniteeControl Transaction unless:
(1i) for any Taxes representations and warranties to be made by such Shareholder in connection with the proposed Change of Control Transaction are limited to representations and warranties related to authority, ownership and the ability to convey title to such Securities, including, but not limited to, representations and warranties that (A) the Shareholder holds all right, title and interest in and to the Securities such Shareholder purports to hold, free and clear of all liens and encumbrances, (B) the obli- gations of the Shareholder in connection with the transaction have been duly authorized, if applicable, (C) the documents to be entered into by the Shareholder have been duly executed by the Shareholder and delivered to the acquirer and are enforceable against the Shareholder in accordance with their respective terms; and (D) neither the execution and delivery of documents to be entered into in connection with the transaction, nor the performance of the Shareholder’s obligations thereunder, will cause a breach or a loss violation of Tax Benefitthe terms of any agreement, whether law or not Borrower is required to indemnify therefor pursuant to Section 9.3judgment, order or decree of any court or governmental agency;
(2ii) to the extent attributable to any Transfer (voluntary or involuntary) by or on behalf of such Indemnitee of any Equipment Note, Commitment or interest therein, except Shareholder shall not be liable for reasonable out-of-pocket costs and expenses incurred as a result of any such Transfer requested in writing by Borrower or made or effected as required by or pursuant to the terms of the Operative Agreements or made or effected in connection with or pursuant to the exercise of remedies under any Operative Agreement;
(3) to the extent attributable to the gross negligence or willful misconduct of such Indemnitee or any “Related Indemnitee” (as defined at the end of this Section 9.1(b)) (other than gross negligence or willful misconduct imputed to such Person solely by reason of its interest in the Aircraft or being party to any Operative Agreement);
(4) to the extent attributable to the incorrectness or breach inaccuracy of any representation or warranty made by any other person in connection with the proposed Change of such Indemnitee or any Related IndemniteeControl Transaction, contained in or made pursuant to any Operative Agreement;
other than the Company (5) except to the extent attributable that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the failure Company as well as breach by such Indemnitee or any Related Indemnitee to perform or observe any express agreement, covenant, or condition on its part to be performed or observed in any Operative Agreement;
(6) to the extent attributable to the offer or sale by such Indemnitee or any Related Indemnitee Shareholder of any interest in the Equipment Notes or its Commitment in violation of the registration requirements of the Securities Act or in violation of the registration requirements of any applicable state or foreign securities Laws (other than any thereof caused identical representations, warranties and covenants provided by acts or omissions of Borrowerall Shareholders);
(7iii) to the extent attributable to Security Agent’s failure to distribute funds received liability for indemnification, if any, of such Shareholder in the proposed Change of Control Transaction and distributable by it in accordance with for the Operative Agreements;
(8) other than during the existence of an Event of Default, to the extent attributable to the authorization or giving or withholding inaccuracy of any future amendmentsrepresentations and warranties made by the Company or its Shareholders in connection with such proposed Change of Control Transaction, supplements, waivers, or consents is several and not joint with respect to any Operative Agreement, other than any requested by Borrower or required by or made pursuant to the terms of the Operative Agreements person (unless such requirement results from the actions of an Indemnitee not required by or made pursuant to the Operative Agreements);
(9) to the extent attributable to any amount which any Indemnitee expressly agrees to pay or such Indemnitee expressly agrees shall not be paid by or be reimbursed by Borrower;
(10) except to the extent that it funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by any Shareholder of any of identical representations, warranties and covenants provided by all Shareholders), and is an ordinary pro rata in proportion to, and usual operating or overhead expense;
(11) for any Lien attributable does not exceed, the amount of consideration paid to such Indemnitee or any Related Indemnitee that Borrower is not obligated to discharge under the Operative Agreements;
(12) if another provision Shareholder in connection with such proposed Change of an Operative Agreement specifies the extent of Borrower’s responsibility or obligation Control Transaction, except with respect to claims related to fraud by such ExpenseShareholder, the liability for which need not be limited as to such Shareholder; and
(iv) upon the consummation of the proposed Change of Control Transaction
(A) each holder of each class or series of the Company’s stock will receive the same form of consideration for their shares of such class or series as is received by other holders in respect of their shares of such same class or series of stock (except as set forth in Section 5.01(a)(vi) above), and (ii) the aggregate consideration receivable by all holders of the Preferred Stock and Common Stock shall be allocated among the holders of Preferred Stock and Common Stock on the basis of the relative liquidation preferences to which the holders of each respective series of Preferred Stock and the holders of Common Stock are entitled in a transaction deemed to be a liquidation, dissolution or winding up of the Company pursuant to the extent arising from Company's Certificate of Incorporation (assuming for this purpose that the proposed Change of Control Transaction is a cause other than Borrower’s failure transaction deemed to comply with such specified responsibility be a liquidation, dissolution or obligation; or
(13) winding up of the Company pursuant to the extent imposed on an Indemnitee as a result Company's Certificate of any non-exempt “prohibited transaction” under 406(a) of ERISA or Section 4975(c)(1) of the Code caused by such Indemnitee. For purposes of this Section 9.1, a Person shall be considered a “Related Indemnitee” of an Indemnitee if that Person is an Affiliate or employer of such Indemnitee, a director, officer, employee, agent, or servant of such Indemnitee or any such AffiliateIncorporation).
Appears in 2 contracts
Sources: Shareholder Agreement, Shareholder Agreements
Exceptions. Notwithstanding anything in Section 9.1(a), Borrower shall not be required to indemnify, protect, defend or hold harmless any Indemnitee pursuant to Section 9.1(a) against any Expense of such Indemnitee:
(1) for any Taxes or a loss of Tax Benefit, whether or not Borrower is required to indemnify therefor pursuant to Section 9.3;
(2) Any other provision herein to the extent attributable to any Transfer (voluntary or involuntary) by or on behalf of such Indemnitee of any Equipment Notecontrary notwithstanding, Commitment or interest therein, except for reasonable out-of-pocket costs and expenses incurred as a result of any such Transfer requested in writing by Borrower or made or effected as required by or pursuant to the terms of this Agreement, an Indemnifying Party shall not be obligated:
(a) to indemnify the Operative Agreements Indemnified Party for any acts or made omissions or effected in connection with transactions from which a trustee, director, officer or pursuant to the exercise of remedies under any Operative Agreementagent may not be indemnified by such Indemnifying Party, as provided by Applicable Law;
(3b) to the extent attributable indemnify or advance Expenses to the gross negligence Indemnified Party with respect to proceedings or willful misconduct claims initiated or brought voluntarily by the Indemnified Party and not by way of such Indemnitee defense, except with respect to proceedings brought to establish or any “Related Indemnitee” (as defined at the end enforce a right to indemnification under this Agreement, Applicable Law or a policy of this Section 9.1(b)insurance referred to in subsection 7(a) (other than gross negligence or willful misconduct imputed to such Person solely by reason of its interest in the Aircraft or being party to any Operative Agreement)hereof;
(4c) to indemnify the extent attributable to Indemnified Party for any Expenses incurred by the incorrectness or breach of any representation or warranty of such Indemnitee or any Related Indemnitee, contained in or made pursuant to any Operative Agreement;
(5) to the extent attributable to the failure by such Indemnitee or any Related Indemnitee to perform or observe any express agreement, covenant, or condition on its part to be performed or observed in any Operative Agreement;
(6) to the extent attributable to the offer or sale by such Indemnitee or any Related Indemnitee of any interest in the Equipment Notes or its Commitment in violation of the registration requirements of the Securities Act or in violation of the registration requirements of any applicable state or foreign securities Laws (other than any thereof caused by acts or omissions of Borrower);
(7) to the extent attributable to Security Agent’s failure to distribute funds received and distributable by it in accordance with the Operative Agreements;
(8) other than during the existence of an Event of Default, to the extent attributable to the authorization or giving or withholding of any future amendments, supplements, waivers, or consents Indemnified Party with respect to any Operative Proceeding instituted to enforce or interpret this Agreement, other than if a Final Determination is made that any requested by Borrower or required by or made pursuant to the terms of the Operative Agreements (unless material assertions made by the Indemnified Party in such requirement results from the actions of an Indemnitee proceedings are not required by made in good faith or made pursuant to the Operative Agreements)are frivolous;
(9d) to indemnify the extent attributable Indemnified Party for Expenses or liabilities of any type whatsoever which have been paid directly to any amount which any Indemnitee expressly agrees to pay the Indemnified Party by an insurance carrier under a policy of trustees’, directors’, managers’, officers’ or such Indemnitee expressly agrees shall not be paid other applicable liability insurance maintained by or be reimbursed by Borroweran Indemnifying Party;
(10e) to indemnify the extent that it is an ordinary and usual operating Indemnified Party for Expenses or overhead expense;
(11) for any Lien attributable to such Indemnitee or any Related Indemnitee that Borrower is not obligated to discharge under the Operative Agreements;
(12) if another provision payment of an Operative Agreement specifies the extent of Borrower’s responsibility or obligation with respect to such Expense, to the extent profits arising from a cause other than Borrower’s failure to comply with such specified responsibility or obligationthe purchase and sale by the Indemnified Party of securities in violation of applicable securities laws; or
(13f) to indemnify the extent imposed on Indemnified Party for Expenses for which the Indemnified Party is indemnified by an Indemnitee as a result of any non-exempt “prohibited transaction” under 406(a) of ERISA or Section 4975(c)(1) of the Code caused by such Indemnitee. For purposes of Indemnifying Party otherwise than pursuant to this Section 9.1, a Person shall be considered a “Related Indemnitee” of an Indemnitee if that Person is an Affiliate or employer of such Indemnitee, a director, officer, employee, agent, or servant of such Indemnitee or any such AffiliateAgreement.
Appears in 2 contracts
Sources: Indemnification Agreement (Bumble Bee Capital Corp.), Indemnification Agreement (Bumble Bee Capital Corp.)
Exceptions. Notwithstanding anything The indemnity provided for in Section 9.1(a), Borrower 9.01(a) shall not be required extend to indemnify, protect, defend or hold harmless any Indemnitee pursuant to Section 9.1(a) against any Expense of such Indemniteeany Indemnitee to the extent it:
(1i) would not have occurred but for the willful misconduct or gross negligence of such Indemnitee;
(ii) after the Delivery Date, is in respect of the Aircraft, and is attributable to acts or events which occur after the Aircraft is no longer part of the Lessor's Estate or leased under the Lease or, if the Aircraft remains a part of the Lessor's Estate, after the expiration of the Term and any Taxes holdover period under Section 12.05 of the Lease (other than pursuant to Article 17 of the Lease, in which case the indemnity provided in Section 9.01(a) hereof shall survive for so long as Lessor or the Indenture Trustee shall be entitled to exercise remedies under such Article 17), or to acts or events which occur after return of possession of the Aircraft by the Lessee in accordance with the provisions of the Lease but in any such case only to the extent not fairly attributable to acts or omissions of the Lessee prior to expiration of the Term and any holdover period under Section 12.05 of the Lease, including without limitation the Lessee's failure to fully discharge all of its obligations under the Lease or the other Operative Agreements;
(iii) is a loss of Tax BenefitTax, whether or not Borrower the Lessee is required to indemnify therefor pursuant to Section 9.3;
(2) to the extent attributable to any Transfer (voluntary or involuntary) by or on behalf of such Indemnitee of any Equipment Note, Commitment or interest therein, except for reasonable out-of-pocket costs and expenses incurred as a result of any such Transfer requested in writing by Borrower or made or effected as required by Article 8 hereof or pursuant to the terms of the Operative Agreements or made or effected in connection with or pursuant to the exercise of remedies under any Operative Tax Indemnity Agreement;
(3iv) is a cost or expense required to be paid by the Owner Participant or its permitted transferees (and not by the Lessee) pursuant to this Agreement or any other Operative Agreement (other than the Owner Participant's obligations under Section 6.01 of the Trust Agreement) and for which the Lessee is not otherwise obligated to reimburse the Owner Participant, directly or indirectly;
(v) would not have been incurred by such Indemnitee if such Indemnitee had not been in breach of its representations or warranties, or had not defaulted in the observance and performance of the terms and provisions required to be observed and performed by it, in this Agreement, the Purchase Agreement Assignment, the Lease, the Indenture, the Trust Agreement or any other Operative Agreement to which it is a party unless such breach or default shall be a result of the breach or default of any of the foregoing by the Lessee or another Indemnitee;
(vi) [reserved];
(vii) in the case of the Owner Participant, Lessor's Liens to the extent attributable to the gross negligence or willful misconduct of such Indemnitee or any “Related Indemnitee” (as defined at the end of this Section 9.1(b)) (other than gross negligence or willful misconduct imputed to such Person solely by reason of its interest Owner Participant; in the Aircraft or being party to any Operative Agreement);
(4) case of the Owner Trustee, Lessor's Liens to the extent attributable to the incorrectness or breach Owner Trustee; and in the case of any representation or warranty of such Indemnitee or any Related Indemniteethe Indenture Trustee, contained in or made pursuant to any Operative AgreementIndenture Trustee's Liens;
(5viii) to is in the extent attributable to case of the failure by such Indemnitee Owner Participant or any Related Indemnitee to perform or observe any express agreementthe Owner Trustee, covenant, or condition on its part to be performed or observed in any Operative Agreement;
(6) to the extent attributable to the offer or sale by such Indemnitee or any Related Indemnitee after the Certificate Closing Date of any interest in the Equipment Notes Aircraft, the Lessor's Estate or its Commitment the Trust Agreement or any similar interest (including an offer or sale resulting from bankruptcy or other proceedings for the relief of debtors in violation which such Indemnitee is the debtor), unless in each case such offer or sale shall occur (w) in connection with a Refinancing, (x) as a result of exercise of remedies under Article 17 of the registration requirements of the Securities Act or in violation of the registration requirements of any applicable state or foreign securities Laws Lease, (other than any thereof caused by acts or omissions of Borrower);
(7y) to the extent attributable to Security Agent’s failure to distribute funds received and distributable by it in accordance with the Operative Agreements;
(8) other than during the existence of a period when an Event of Default, to Loss has occurred or (z) in connection with the extent attributable to termination of the authorization Lease or giving action or withholding direction of any future amendments, supplements, waivers, or consents with respect to any Operative Agreement, other than any requested by Borrower or required by or made the Lessee pursuant to the terms of the Operative Agreements (unless such requirement results from the actions of an Indemnitee not required by or made pursuant to the Operative Agreements);
(9) to the extent attributable to any amount which any Indemnitee expressly agrees to pay or such Indemnitee expressly agrees shall not be paid by or be reimbursed by Borrower;
(10) to the extent that it is an ordinary and usual operating or overhead expense;
(11) for any Lien attributable to such Indemnitee or any Related Indemnitee that Borrower is not obligated to discharge under the Operative Agreements;
(12) if another provision of an Operative Agreement specifies the extent of Borrower’s responsibility or obligation with respect to such Expense, to the extent arising from a cause other than Borrower’s failure to comply with such specified responsibility or obligationLease; or
(13ix) which is incurred by the Owner Participant or any person who is a "disqualified person", within the meaning of Section 4975(e)(2) of the Code, or a "party in interest", within the meaning of Section 3(14) of ERISA, by virtue of such person's relationship to the extent imposed on an Indemnitee Owner Participant, as a the result of any non-exempt “prohibited transaction” under 406(a) , within the meaning of Section 406 of ERISA or Section 4975(c)(1) of the Code caused by such Indemnitee. For purposes Code, occurring with respect to the purchase or holding of this Section 9.1, any Pass Through Certificate (i) over which purchase or holding the Owner Participant or any Affiliate thereof has discretion or control (other than in the capacity of a Person shall be considered a “Related Indemnitee” of an Indemnitee if that Person is an Affiliate directed trustee or employer of such Indemnitee, a director, officer, employee, agentcustodian), or servant (ii) by an employee benefit plan, within the meaning of such Indemnitee Section 3(3) of ERISA, or individual retirement account or plan subject to Section 4975 of the Code with respect to which the Owner Participant (or any Affiliate thereof) has the power, directly or indirectly, to appoint or terminate, or to negotiate the terms of the management agreement with, the person or persons having discretion or control (other than in the capacity of a directed trustee or custodian), over such Affiliatepurchase or holding.
Appears in 2 contracts
Sources: Participation Agreement (Federal Express Corp), Participation Agreement (Federal Express Corp)
Exceptions. Notwithstanding anything in Section 9.1(a)ss.
9.1.1, Borrower Lessee shall not be required to indemnify, protect, defend or defend, and hold harmless any Indemnitee pursuant to Section 9.1(a) tO ss.
9.1.1 against any Expense of such Indemnitee:
(1a) for any Taxes or a loss of Tax Benefitbenefit, whether or not Borrower Lessee is required to indemnify therefor pursuant to Section 9.3ss. 9.3 or the TaX Indemnity Agreement (other than amounts required to be paid to render the payment of any Expense payable under ss.
9.1.1 on aN after-tax basis);
(b) except to the extent attributable to acts or events occurring prior thereto, acts or events (other than acts or events related to Lessee's performance of its obligations pursuant to the terms of the Lessee Operative Agreements) that occur after: (1) with respect to the Airframe, any Engine, or any Part, the return of possession (which, if the Aircraft is placed in storage as provided inss. 5 of the Lease, is the date that the Aircraft is placed in storage) of such Airframe, Engine, or Part pursuant to the Lease (other than pursuant toss. 15 thereof, in which case Lessee's liability under thisss.
9.1 shall survive for so long as Lessor iS entitled to exercise remedies under suchss. 15 or in connection with Lessee in the event of exercise of its early termination option underss. 9 of the Lease or its purchase options underss. 17.3 of the Lease), and (2) the termination of the Term in accordance witH the Lease;
(c) to the extent attributable to any Transfer (voluntary or involuntary) by or on behalf of such Indemnitee of any Equipment Note, Commitment Note or interest therein, except (1) for reasonable out-of-pocket costs and expenses incurred as a result of any such Transfer requested in writing by Borrower or made or effected as required by or pursuant to the terms of the Operative Agreements or made or effected in connection with or pursuant to the exercise of remedies under any Operative Agreement;
(3) to the extent attributable to the gross negligence or willful misconduct of such Indemnitee or any “Related Indemnitee” (as defined at the end of this Section 9.1(b)) (other than gross negligence or willful misconduct imputed to such Person solely by reason of its interest in the Aircraft or being party to any Operative Agreement);
(4) to the extent attributable to the incorrectness or breach of any representation or warranty of such Indemnitee or any Related Indemnitee, contained in or made pursuant to any Operative Agreement;
(5) to the extent attributable to the failure by such Indemnitee or any Related Indemnitee to perform or observe any express agreement, covenant, or condition on its part to be performed or observed in any Operative Agreement;
(6) to the extent attributable to the offer or sale by such Indemnitee or any Related Indemnitee of any interest in the Equipment Notes or its Commitment in violation of the registration requirements of the Securities Act or in violation of the registration requirements of any applicable state or foreign securities Laws (other than any thereof caused by acts or omissions of Borrower);
(7) to the extent attributable to Security Agent’s failure to distribute funds received and distributable by it in accordance with the Operative Agreements;
(8) other than during the existence of an Agreement resulting from a Lease Event of Default, to the extent attributable to the authorization or giving or withholding of any future amendments, supplements, waivers, or consents with respect to any Operative Agreement, other than any requested by Borrower or and (2) as otherwise required by or made pursuant to the terms of the Operative Agreements (unless such requirement results from the actions of an Indemnitee not required by or made pursuant to the Operative Agreements);
(9) to the extent attributable to any amount which any Indemnitee expressly agrees to pay or such Indemnitee expressly agrees shall not be paid by or be reimbursed by Borrower;
(10) to the extent that it is an ordinary and usual operating or overhead expense;
(11) for any Lien attributable to such Indemnitee or any Related Indemnitee that Borrower is not obligated to discharge under the Operative Agreements;
(12) if another provision of an Operative Agreement specifies the extent of Borrower’s responsibility or obligation with respect to such Expense, to the extent arising from a cause other than Borrower’s failure to comply with such specified responsibility or obligation; or
(13) to the extent imposed on an Indemnitee as a result of any non-exempt “prohibited transaction” under 406(a) of ERISA or Section 4975(c)(1) of the Code caused by such Indemnitee. For purposes of this Section 9.1, a Person shall be considered a “Related Indemnitee” of an Indemnitee if that Person is an Affiliate or employer of such Indemnitee, a director, officer, employee, agent, or servant of such Indemnitee or any such Affiliatess.
Appears in 2 contracts
Sources: Financing Agreement (Amtran Inc), Participation Agreement (Amtran Inc)
Exceptions. Notwithstanding anything contained in Section 9.1(a9.16(a), Borrower shall not be required to indemnify, protect, defend or and hold harmless any Indemnitee pursuant to Section 9.1(a9.16(a) against in respect of any Expense of such Indemnitee:
(1i) for For any Taxes or a loss of Tax Benefitbenefit, whether or not Borrower is required to indemnify therefor pursuant to the Operative Agreements provided, however, this Section 9.39.16(b)(i) shall not apply to any Taxes taken into account in making any payment on a net After-tax Basis or any claims of the Security Trustee (other than claims with respect to Taxes on fees payable to the Security Trustee);
(2ii) With respect to any Indemnitee (other than the Security Trustee) except to the extent attributable to any Transfer acts or events occurring prior thereto, acts or events (voluntary other than acts or involuntary) by events related to the performance or on behalf of such Indemnitee of any Equipment Note, Commitment or interest therein, except for reasonable out-of-pocket costs and expenses incurred as a result of any such Transfer requested in writing failure to perform by Borrower or made or effected as required by or of its obligations pursuant to the terms of the Operative Agreements or made or effected in connection with or Agreements) that occur after the Lender is required to direct the Security Trustee to release the Collateral pursuant to the exercise Section 2.8 of remedies under any Operative this Agreement;.
(3iii) to the extent attributable to the gross negligence or willful misconduct of such Indemnitee or any “Related Indemnitee” (as defined at the end of this Section 9.1(b)) (other than gross negligence or willful misconduct imputed to such Person solely by reason of its interest in the Aircraft or being party to any Operative Agreement);[*]
(4iv) to the extent attributable to the incorrectness or breach of any representation or warranty of such Indemnitee or any Related Indemnitee, contained in or made pursuant to any Operative Agreement;[*]
(5v) to the extent attributable to the failure by such Indemnitee or any Related Indemnitee to perform or observe any express agreement, covenant, or condition on its part to be performed or observed in any Operative Agreement;[*]
(6vi) to the extent attributable to the offer or sale by such Indemnitee or any Related Indemnitee of any interest in the Equipment Notes or its Commitment in violation of the registration requirements of the Securities Act or in violation of the registration requirements of any applicable state or foreign securities Laws (other than any thereof caused by acts or omissions of Borrower);[*]
(7vii) to the extent attributable to Security Agent’s failure to distribute funds received and distributable by it in accordance with the Operative Agreements;[*]
(8) other than during the existence of an Event of Default, to the extent attributable to the authorization or giving or withholding of any future amendments, supplements, waivers, or consents with respect to any Operative Agreement, other than any requested by Borrower or required by or made pursuant to the terms of the Operative Agreements (unless such requirement results from the actions of an Indemnitee not required by or made pursuant to the Operative Agreements);viii) [*]
(9ix) to the extent attributable to any amount which any Indemnitee expressly agrees to pay or such Indemnitee expressly agrees shall not be paid by or be reimbursed by Borrower;[*]
(10x) to the extent that it is an ordinary and usual operating or overhead expense;[*]
(11xi) for any Lien attributable to such Indemnitee or any Related Indemnitee that Borrower is not obligated to discharge under the Operative Agreements;[*]
(12xii) if If another provision of an a Operative Agreement Agreements specifies the extent of Borrower’s 's responsibility or obligation with respect to such Expense, to the extent arising from a cause other than Borrower’s failure of Borrower to comply with such specified responsibility or obligation; or;
(13xiii) To the extent it is an expense dealt with in Section 9.15;
(xiv) [*]
(xv) With respect to any Indemnitee (other than the Security Trustee) to the extent imposed on an attributable to a Lender Lien or with respect to any Indemnitee as to the extent attributable to a result of any non-exempt “prohibited transaction” under 406(aSecurity Trustee Lien; and
(xvi) of ERISA or Section 4975(c)(1) of the Code caused by such Indemnitee[*]. For purposes of this Section 9.19.16, a Person shall be considered a “Related Indemnitee” of "related" Indemnitee with respect to an Indemnitee if that such Person is an Affiliate or employer of such Indemnitee, a --------- * Confidential 41 director, officer, employee, agent, or servant of such Indemnitee or any such AffiliateAffiliate or a successor or permitted assignee of any of the foregoing.
Appears in 2 contracts
Sources: Loan Agreement (Republic Airways Holdings Inc), Loan Agreement (Republic Airways Holdings Inc)
Exceptions. Notwithstanding anything in Section 9.1(a)the foregoing, Borrower shall a Stockholder will not be required to indemnifycomply with Subsection 7.1 above in connection with any proposed Sale of the Company (the “Proposed Sale”), protect, defend or hold harmless any Indemnitee pursuant to Section 9.1(a) against any Expense of such Indemniteeunless:
(1a) for any Taxes representations and warranties to be made by such Stockholder in connection with the Proposed Sale are limited to representations and warranties related to authority, ownership and the ability to convey title to such Shares, including, but not limited to, representations and warranties that (i) the Stockholder holds all right, title and interest in and to the Shares such Stockholder purports to hold, free and clear of all liens and encumbrances, (ii) the obligations of the Stockholder in connection with the transaction have been duly authorized, if applicable, (iii) the documents to be entered into by the Stockholder have been duly executed by the Stockholder and delivered to the acquirer and are enforceable against the Stockholder in accordance with their respective terms; and (iv) neither the execution and delivery of documents to be entered into in connection with the transaction, nor the performance of the Stockholder’s obligations thereunder, will cause a breach or a loss violation of Tax Benefitthe terms of any agreement, whether law or not Borrower is required to indemnify therefor pursuant to Section 9.3judgment, order or decree of any court or governmental agency;
(2b) to the extent attributable to any Transfer (voluntary or involuntary) by or on behalf of such Indemnitee of any Equipment Note, Commitment or interest therein, except Stockholder shall not be liable for reasonable out-of-pocket costs and expenses incurred as a result of any such Transfer requested in writing by Borrower or made or effected as required by or pursuant to the terms of the Operative Agreements or made or effected in connection with or pursuant to the exercise of remedies under any Operative Agreement;
(3) to the extent attributable to the gross negligence or willful misconduct of such Indemnitee or any “Related Indemnitee” (as defined at the end of this Section 9.1(b)) (other than gross negligence or willful misconduct imputed to such Person solely by reason of its interest in the Aircraft or being party to any Operative Agreement);
(4) to the extent attributable to the incorrectness or breach inaccuracy of any representation or warranty of such Indemnitee or made by any Related Indemniteeother Person in connection with the Proposed Sale, contained in or made pursuant to any Operative Agreement;
other than the Company (5) except to the extent attributable that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the failure Company as well as breach by such Indemnitee or any Related Indemnitee to perform or observe any express agreement, covenant, or condition on its part to be performed or observed in any Operative Agreement;
(6) to the extent attributable to the offer or sale by such Indemnitee or any Related Indemnitee stockholder of any interest in the Equipment Notes or its Commitment in violation of the registration requirements of the Securities Act or in violation of the registration requirements of any applicable state or foreign securities Laws (other than any thereof caused identical representations, warranties and covenants provided by acts or omissions of Borrowerall stockholders);
(7c) the liability for indemnification, if any, of such Stockholder in the Proposed Sale and for the inaccuracy of any representations and warranties made by the Company or its Stockholders in connection with such Proposed Sale, is several and not joint with any other Person (except to the extent attributable that funds may be paid out of an escrow established to Security Agentcover breach of representations, warranties and covenants of the Company as well as breach by any stockholder of any of identical representations, warranties and covenants provided by all stockholders), and subject to the provisions of the Certificate of Incorporation related to the allocation of the escrow, is pro rata in proportion to, and does not exceed, the amount of consideration paid to such Stockholder in connection with such Proposed Sale; and
(d) upon the consummation of the Proposed Sale (i) each holder of each class or series of the Company’s failure stock will receive the same form of consideration for their shares of such class or series as is received by other holders in respect of their shares of such same class or series of stock, (ii) each holder of Common Stock will receive the same amount of consideration per share of Common Stock as is received by other holders in respect of their shares of Common Stock and (iii) unless the holders of (x) a majority of the Preferred Stock elect to distribute funds received receive a lesser amount by written notice given to the Company at least three (3) days prior to the effective date of any such Proposed Sale, , the aggregate consideration receivable by all holders of Preferred Stock and distributable by it Common Stock shall be allocated among the holders of Preferred Stock and Common Stock on the basis of the relative liquidation preferences to which the holders of each respective series of Preferred Stock and the holders of Common Stock are entitled in a Deemed Liquidation Event (assuming for this purpose that the Proposed Sale is a Deemed Liquidation Event) in accordance with the Operative Agreements;
(8) other than during the existence Company’s Certificate of an Event of Default, Incorporation in effect immediately prior to the extent attributable Proposed Sale; provided, however, that, notwithstanding the foregoing, if the consideration to be paid in exchange for the authorization Key Holder Shares or giving Investor Shares, as applicable, pursuant to this Subsection 7.2(d) includes any securities and due receipt thereof by any Key Holder or withholding Investor would require under applicable law (x) the registration or qualification of such securities or of any future amendments, supplements, waivers, person as a broker or consents with respect to any Operative Agreement, other than any requested by Borrower dealer or required by or made pursuant to the terms of the Operative Agreements (unless such requirement results from the actions of an Indemnitee not required by or made pursuant to the Operative Agreements);
(9) to the extent attributable to any amount which any Indemnitee expressly agrees to pay or such Indemnitee expressly agrees shall not be paid by or be reimbursed by Borrower;
(10) to the extent that it is an ordinary and usual operating or overhead expense;
(11) for any Lien attributable to such Indemnitee or any Related Indemnitee that Borrower is not obligated to discharge under the Operative Agreements;
(12) if another provision of an Operative Agreement specifies the extent of Borrower’s responsibility or obligation agent with respect to such Expensesecurities; or (y) the provision to any Key Holder or Investor of any information other than such information as a prudent issuer would generally furnish in an offering made solely to “accredited investors” as defined in Regulation D promulgated under the Securities Act, the Company may cause to be paid to any such Key Holder or Investor in lieu thereof, against surrender of the Key Holder Shares or Investor Shares, as applicable, which would have otherwise been sold by such Key Holder or Investor, an amount in cash equal to the extent arising from a cause other than Borrower’s failure to comply with such specified responsibility or obligation; or
fair value (13) to as determined in good faith by the extent imposed on an Indemnitee as a result of any non-exempt “prohibited transaction” under 406(a) of ERISA or Section 4975(c)(1Company) of the Code caused by securities which such Indemnitee. For purposes Key Holder or Investor would otherwise receive as of this Section 9.1, a Person shall be considered a “Related Indemnitee” the date of an Indemnitee if that Person is an Affiliate or employer the issuance of such Indemniteesecurities in exchange for the Key Holder Shares or Investor Shares, a director, officer, employee, agent, or servant of such Indemnitee or any such Affiliateas applicable.
Appears in 2 contracts
Sources: Stockholders Agreement (Alzheon, Inc.), Stockholders Agreement (Alzheon, Inc.)
Exceptions. Notwithstanding anything contained in Section 9.1(a)9.1.1, Borrower Lessee shall not be required to indemnify, protect, defend or and hold harmless any Indemnitee pursuant to Section 9.1(a) against 9.1.1 in respect of any Expense of such Indemnitee:
(1a) for For any Taxes or a loss of Tax Benefitbenefit, whether or not Borrower Lessee is required to indemnify therefor pursuant to Section 9.39.3 or the Tax Indemnity Agreement;
(2b) Except to the extent attributable to acts or events occurring prior thereto, acts or events (other than acts or events related to the performance or failure to perform by Lessee of its obligations pursuant to the terms of the Lessee Operative Agreements) that occur after the earliest of: (i) with respect to the Airframe, any Engine or any Part, the return of possession (it being understood that the date of the placement of the Aircraft in storage as provided in Section 5 of the Lease constitutes the date of return of the Aircraft under the Lease) of such Airframe, Engine or Part pursuant to the terms of and in compliance with the Lease (other than pursuant to Section 15 thereof, in which case Lessee's liability under this Section 9.1 shall survive for so long as Lessor or Mortgagee shall be entitled to exercise remedies under such Section 15) or (ii) the termination of the Term in accordance with the Lease;
(c) To the extent attributable to any Transfer (voluntary or involuntary) by or on behalf of such Indemnitee of any Equipment Note, Commitment Note or interest therein, except (i) for reasonable out-of-pocket costs and expenses incurred as a result of any such Transfer requested in writing by Borrower or made or effected as required by or pursuant to the terms of the Operative Agreements or made or effected in connection with or pursuant to the exercise of remedies under any Operative AgreementAgreement resulting from a Lease Event of Default and (ii) as otherwise required by the terms of Section 2.13 of the Trust Indenture;
(3d) To the extent attributable to any Transfer (voluntary or involuntary) by or on behalf of Owner Participant of any interest in the Aircraft, or the Trust Estate except for costs and expenses incurred as a result of such Transfer, if such Transfer arises directly from a Lease Event of Default that shall have occurred and be continuing;
(e) To the extent attributable to the gross negligence or willful misconduct of such Indemnitee or any “Related Indemnitee” related Indemnitee (as defined at the end of this Section 9.1(b)below) (other than gross negligence or willful misconduct imputed to such Person solely person by reason of its interest in the Aircraft or being party to any Operative Agreement);
(4f) In the case of First Security, to the extent attributable to matters enumerated in the proviso to Section 14;
(g) To the extent attributable to the incorrectness or breach of any representation or warranty of such Indemnitee or any Related Indemnitee, related Indemnitee contained in or made pursuant to any Operative Agreement or any Pass Through Agreement;
(5h) to To the extent attributable to the failure by such Indemnitee or any Related related Indemnitee to perform or observe any express agreement, covenant, covenant or condition on its part to be performed or observed in any Operative Agreement or any Pass Through Agreement;
(6i) to To the extent attributable to the offer or sale by such Indemnitee or any Related related Indemnitee of any interest in the Aircraft, the Equipment Notes Notes, the Pass Through Certificates, the Trust Estate or its Commitment the Trust Agreement or any similar interest, in violation of the registration requirements of the Securities Act or in violation of the registration requirements of any other applicable federal, state or foreign securities Laws (other than any offer or sale thereof caused by the acts or omissions of BorrowerLessee);
(7i) With respect to any Indemnitee (other than Mortgagee), to the extent attributable to Security Agent’s the failure of the Mortgagee to distribute funds received and distributable by it in accordance with the Operative Trust Indenture, (ii) with respect to any Indemnitee (other than the Owner Trustee), to the extent attributable to the failure of the Owner Trustee to distribute funds received and distributable by it in accordance with the Trust Agreement, (iii) with respect to any Indemnitee (other than the Subordination Agent), to the extent attributable to the failure of the Subordination Agent to distribute funds received and distributable by it in accordance with the Intercreditor Agreement, (iv) with respect to any Indemnitee (other than the Pass Through Trustees), to the extent attributable to the failure of a Pass Through Trustee to distribute funds received and distributable by it in accordance with the Pass Through Trust Agreements;, (v) with respect to Mortgagee, to the extent attributable to the negligence or willful misconduct of Mortgagee in the distribution of funds received and distributable by it in accordance with the Trust Indenture, (vi) with respect to Owner Trustee, to the extent attributable to the negligence or willful misconduct of Owner Trustee in the distribution of funds received and distributable by it in accordance with the Trust Agreement, (vii) with respect to the Subordination Agent, to the extent attributable to the negligence or willful misconduct of the Subordination Agent in the distribution of funds received and distributable by it in accordance with the Intercreditor Agreement, and (viii) with respect to the Pass Through Trustees, to the extent attributable to the negligence or willful misconduct of a Pass Through Trustee in the distribution of funds received and distributable by it in accordance with the Pass Through Trust Agreements.
(8) other k) Other than during the existence continuation of an a Lease Event of Default, to the extent attributable to the authorization or giving or withholding of any future amendments, supplements, waivers, waivers or consents with respect to any Operative Agreement, Agreement or Pass Through Agreement other than any such as have been requested by Borrower Lessee or as are required by or made pursuant to the terms of the Operative Agreements or Pass Through Agreements (unless such requirement results from the actions of an Indemnitee not required by or made pursuant to the Operative Agreements or the Pass Through Agreements);
(9l) to To the extent attributable to any amount which any Indemnitee expressly agrees to pay or such Indemnitee expressly agrees shall not be paid by or be reimbursed by BorrowerLessee;
(10m) to To the extent that it is an ordinary and usual operating or overhead expense;
(11n) for With respect to the Owner Participant or the Owner Trustee, or any related Indemnitee, to the extent attributable to the deregistration of the Aircraft under the Act as a result of Owner Participant's or Owner Trustee's (or any related Indemnitee of either) not being a Citizen of the United States as a result of any act (other than reregistration of the Aircraft pursuant to Section 7.1.2 of the Lease) of Owner Participant or Owner Trustee, or any related Indemnitee of either of the foregoing (not taken at the request of the Lessee);
(o) For any Lessor Lien attributable to such Indemnitee or any Related Indemnitee that Borrower is not obligated to discharge under the Operative Agreementsrelated Indemnitee;
(12p) if If another provision of an Operative Agreement or a Pass Through Agreement specifies the extent of Borrower’s Lessee's responsibility or obligation with respect to such Expense, to the extent arising from a cause other than Borrower’s failure of Lessee to comply with such specified responsibility or obligation;
(q) To the extent it is a Transaction Expense;
(r) To the extent constituting principal, Make-Whole Amount or interest on the Equipment Notes attributable solely to an Event of Default not constituting a Lease Event of Default; or
(13s) to To the extent imposed on incurred by or asserted against an Indemnitee as a result of any non-exempt “"prohibited transaction” under 406(a) ", within the meaning of Section 406 of ERISA or Section 4975(c)(1) of the Code caused by such Indemnitee. For purposes of this Section 9.1, a Person shall be considered a “Related Indemnitee” of an Indemnitee if that Person is an Affiliate or employer of such Indemnitee, a director, officer, employee, agent, or servant of such Indemnitee or any such Affiliate.)
Appears in 2 contracts
Sources: Participation Agreement (Continental Airlines Inc /De/), Participation Agreement (Continental Airlines Inc /De/)
Exceptions. Notwithstanding anything in Section 9.1(a), Borrower shall Sublessee is not be required to indemnify, protect, defend or hold harmless any Indemnitee pursuant to Section 9.1(a) against any Expense of such Indemnitee:
(1) for any Taxes or a loss of Tax Benefit, whether or not Borrower is required to indemnify therefor pursuant to any particular Indemnitee (provided that each Indemnitee and their Affiliates, officers, directors and employees shall be treated as a single Indemnitee) under this Section 9.3;
(2) 10, to the extent attributable to any Transfer (voluntary or involuntary) a particular Loss is:
10.2.1 caused solely by or on behalf of such Indemnitee of any Equipment Note, Commitment or interest therein, except for reasonable out-of-pocket costs and expenses incurred as a result of any such Transfer requested in writing by Borrower or made or effected as required by or pursuant to the terms of the Operative Agreements or made or effected in connection with or pursuant to the exercise of remedies under any Operative Agreement;
(3) to the extent attributable to the gross negligence or willful misconduct of such Indemnitee or any “Related that Indemnitee” (as defined at the end of this Section 9.1(b)) (, other than gross negligence or willful misconduct imputed to such Person solely that Indemnitee by reason of its interest in the Aircraft or being the Sublease;
10.2.2 caused solely by any Indemnitee’s material breach of the Sublease or other Operative Documents to which it is a party which does not result from a Default;
10.2.3 related to any Operative AgreementTaxes (but without prejudice to any Indemnitee’s rights under any other provision of the Sublease or the ATSA relating to Taxes);
10.2.4 caused solely by an event which occurs before the commencement of the Term (4except where (aa) to the extent attributable to Loss is suffered during the incorrectness or breach Term as a result of any representation or warranty of such Indemnitee or any Related Indemnitee, contained a pre-Delivery defect in or made pursuant otherwise arises out of or relates to or is any Operative Agreement;
way connected with the manufacture or design, of the Aircraft or (5bb) to the extent attributable to the failure by such Indemnitee Aircraft has been purchased from Sublessee (or any Related Indemnitee to perform or observe any express agreement, covenant, or condition on its part an Affiliate of Sublessee) and is to be performed or observed in any Operative Agreement;
(6) leased back to Sublessee under the extent attributable to the offer or sale by such Indemnitee or any Related Indemnitee of any interest in the Equipment Notes or its Commitment in violation of the registration requirements of the Securities Act or in violation of the registration requirements of any applicable state or foreign securities Laws (other than any thereof caused by acts or omissions of BorrowerSublease);
(7) 10.2.5 caused solely by an event that occurs after the redelivery of the Aircraft to the extent attributable to Security Agent’s failure to distribute funds received and distributable by it Sublessor in accordance compliance with the Operative Agreements;
(8) other than during the existence of an Event of Default, to the extent attributable to the authorization or giving or withholding of any future amendments, supplements, waivers, or consents with respect to any Operative Agreement, other than any requested by Borrower or required by or made pursuant to the terms of the Operative Agreements (unless such requirement results from the actions of an Indemnitee Sublease and is not required by or made pursuant to the Operative Agreements);
(9) to the extent attributable to any amount which any Indemnitee expressly agrees act, omission, event or circumstance occurring prior to pay or such Indemnitee expressly agrees shall not be paid by or be reimbursed by Borrowerredelivery;
(10) to the extent that it is an ordinary and usual operating or overhead expense;
(11) for any Lien attributable to such Indemnitee or any Related Indemnitee that Borrower is not obligated to discharge under the Operative Agreements;
(12) if another provision of an Operative Agreement specifies the extent of Borrower’s responsibility or obligation with respect to such Expense, to the extent arising from a cause other than Borrower’s failure to comply with such specified responsibility or obligation; or
(13) to the extent imposed on an Indemnitee 10.2.6 caused solely as a result of any non-exempt “prohibited transaction” under 406(asale, assignment, transfer or other disposition (whether voluntary or involuntary) of ERISA or Section 4975(c)(1) by such Indemnitee of the Code caused by Aircraft or any Engine or any interest therein that is not a replacement thereof under the Sublease or is otherwise not contemplated under the Sublease, and unless such Indemnitee. For purposes sale, assignment, transfer or other disposition has resulted from or occurred following an Event of this Section 9.1, a Person shall be considered a “Related Indemnitee” Default;
10.2.7 consists of an Indemnitee if that Person is an Affiliate normal administrative costs and expenses or employer of such Indemnitee, a director, officer, employee, agent, or servant usual operating and overhead costs and expenses of such Indemnitee (but excluding any such costs or expenses resulting from the occurrence of any Default);
10.2.8 consists of costs or expenses for which Sublessor has expressly agreed to be responsible under any other provision of the Sublease or the ATSA;
10.2.9 is a Loss for which Sublessor or any such Affiliateother Indemnitee has expressly agreed to be responsible under any other provision of this Agreement or any other Operative Document; or
10.2.10 is indemnified against elsewhere in this Agreement or any other Operative Document.
Appears in 2 contracts
Sources: Air Transportation Services Agreement (Sun Country Airlines Holdings, Inc.), Air Transportation Services Agreement (Sun Country Airlines Holdings, Inc.)
Exceptions. Notwithstanding anything in Section 9.1(a)the foregoing, Borrower shall a Shareholder will not be required to indemnify, protect, defend or hold harmless comply with Subsection 2.1 above in connection with any Indemnitee pursuant to Section 9.1(aproposed Sale of the Company (the “Proposed Sale”) against any Expense of such Indemniteeunless:
(1a) for any Taxes representations and warranties to be made by such Shareholder in connection with the Proposed Sale are limited to representations and warranties related to authority, ownership and the ability to convey title to such Shares, including but not limited to representations and warranties that (i) the Shareholder holds all right, title and interest in and to the Shares such Shareholder purports to hold, free and clear of all liens and encumbrances, (ii) the obligations of the Shareholder in connection with the transaction have been duly authorized, if applicable, (iii) the documents to be entered into by the Shareholder have been duly executed by the Shareholder and delivered to the acquirer and are enforceable against the Shareholder in accordance with their respective terms and (iv) neither the execution and delivery of documents to be entered into in connection with the transaction, nor the performance of the Shareholder’s obligations thereunder, will cause a breach or a loss violation of Tax Benefitthe terms of any agreement, whether law or not Borrower is required to indemnify therefor pursuant to Section 9.3judgment, order or decree of any court or governmental agency;
(2b) to the extent attributable to any Transfer (voluntary or involuntary) by or on behalf of such Indemnitee of any Equipment Note, Commitment or interest therein, except Shareholder shall not be liable for reasonable out-of-pocket costs and expenses incurred as a result of any such Transfer requested in writing by Borrower or made or effected as required by or pursuant to the terms of the Operative Agreements or made or effected in connection with or pursuant to the exercise of remedies under any Operative Agreement;
(3) to the extent attributable to the gross negligence or willful misconduct of such Indemnitee or any “Related Indemnitee” (as defined at the end of this Section 9.1(b)) (other than gross negligence or willful misconduct imputed to such Person solely by reason of its interest in the Aircraft or being party to any Operative Agreement);
(4) to the extent attributable to the incorrectness or breach inaccuracy of any representation or warranty made by any other Person in connection with the Proposed Sale, other than the Company (other than a breach by any Shareholder of any identical representations, warranties and covenants provided by all Shareholders with respect to the Company and not with respect to themselves, in which case the Shareholder shall be liable for its pro rata share of the damages resulting from such Indemnitee or any Related Indemniteebreach, contained in or made pursuant to any Operative Agreement;
(5) and except to the extent attributable that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the failure by such Indemnitee or any Related Indemnitee Company; provided, however, that the breaching Shareholder shall be required to perform or observe any express agreement, covenant, or condition on its part reimburse the non-breaching Shareholders for an amount equal to be performed or observed in any Operative Agreement;
(6) to the extent attributable to the offer or sale by such Indemnitee or any Related Indemnitee their respective pro rata shares of any interest amount paid out of escrow in respect of a breach by the Equipment Notes or breaching Shareholder of one of its Commitment in violation of the registration requirements of the Securities Act or in violation of the registration requirements of any applicable state or foreign securities Laws (other than any thereof caused by acts or omissions of Borrowerrepresentations and warranties with respect to itself);
(7c) to the extent attributable to Security Agent’s failure to distribute funds received liability for indemnification, if any, of such Shareholder in the Proposed Sale and distributable by it in accordance with for the Operative Agreements;
(8) other than during the existence of an Event of Default, to the extent attributable to the authorization or giving or withholding inaccuracy of any future amendmentsrepresentations and warranties made by the Company or its Shareholders in connection with such Proposed Sale, supplements, waivers, or consents is several and not joint with respect to any Operative Agreement, other than any requested by Borrower or required by or made pursuant to the terms of the Operative Agreements Person (unless such requirement results from the actions of an Indemnitee not required by or made pursuant to the Operative Agreements);
(9) to the extent attributable to any amount which any Indemnitee expressly agrees to pay or such Indemnitee expressly agrees shall not be paid by or be reimbursed by Borrower;
(10) except to the extent that it funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Company; provided, however, that the breaching Shareholder shall be required to reimburse the non-breaching Shareholders for an amount equal to their respective pro rata shares of any amount paid out of escrow in respect of a breach by the breaching Shareholder of one of its representations and warranties with respect to itself), and subject to the provisions of the Amended Articles related to the allocation of the escrow, is an ordinary pro rata in proportion to, and usual operating or overhead expense;does not exceed, the amount of consideration paid to such Shareholder in connection with such Proposed Sale; and
(11d) upon the consummation of the Proposed Sale, each holder of each class or series of the Company’s share capital will receive the same form and amount of consideration for their shares of such class or series as is set forth in the Amended Articles in effect immediately prior to the consummation of the Proposed Sale; provided, however, that, notwithstanding the foregoing, if the consideration to be paid in exchange for the Shares pursuant to this Subsection 2.3(d) includes any Lien attributable to securities and due receipt thereof by any Shareholder would require under applicable law (x) the registration or qualification of such Indemnitee securities or of any Related Indemnitee that Borrower is not obligated to discharge under the Operative Agreements;
(12) if another provision of an Operative Agreement specifies the extent of Borrower’s responsibility person as a broker or obligation dealer or agent with respect to such Expensesecurities or (y) the provision to any Shareholder of any information other than such information as a prudent issuer would generally furnish in an offering made solely to “accredited investors” as defined in either Regulation D promulgated under the Securities Act of 1933 or NI 45-106, in either case, as amended, the Company may cause to be paid to any such Shareholder in lieu thereof, against surrender of the Shares which would have otherwise been sold by such Shareholder, an amount in cash equal to the extent arising from a cause other than Borrower’s failure to comply with such specified responsibility or obligation; or
fair value (13) to as determined in good faith by the extent imposed on an Indemnitee as a result of any non-exempt “prohibited transaction” under 406(a) of ERISA or Section 4975(c)(1Company) of the Code caused by securities which such Indemnitee. For purposes Shareholder would otherwise receive as of this Section 9.1, a Person shall be considered a “Related Indemnitee” the date of an Indemnitee if that Person is an Affiliate or employer the issuance of such Indemnitee, a director, officer, employee, agent, or servant of such Indemnitee or any such Affiliatesecurities in exchange for the Shares.
Appears in 2 contracts
Sources: Voting Agreement (DAVIDsTEA Inc.), Voting Agreement (DAVIDsTEA Inc.)
Exceptions. Notwithstanding anything in Section 9.1(a)the forgoing, Borrower shall a Stockholder will not be required to indemnify, protect, defend or hold harmless comply with Section 4(b)(i) above in connection with any Indemnitee pursuant to Section 9.1(aproposed Sale of the Company (the “Proposed Sale”) against any Expense of such Indemniteeunless:
(1A) for any Taxes representations and warranties to be made by such Stockholder in connection with the Proposed Sale are limited to representations and warranties related to authority, ownership and the ability to convey title to such Shares, including but not limited to representations and warranties that (I) the Stockholder holds all right, title and interest in and to the Shares such Stockholder purports to hold, free and clear of all liens and encumbrances, (II) the obligations of the Stockholder in connection with the transaction have been duly authorized, if applicable, (III) the documents to be entered into by the Stockholder have been duly executed by the Stockholder and delivered to the acquirer and are enforceable against the Stockholder in accordance with their respective terms and (IV) neither the execution and delivery of documents to be entered into in connection with the transaction, nor the performance of the Stockholder’s obligations thereunder, will cause a breach or a loss violation of Tax Benefitthe terms of any agreement, whether law or not Borrower is required to indemnify therefor pursuant to Section 9.3judgment, order or decree of any court or governmental agency;
(2B) to The Stockholder shall not be liable for the extent attributable to any Transfer (voluntary or involuntary) by or on behalf of such Indemnitee of any Equipment Note, Commitment or interest therein, except for reasonable out-of-pocket costs and expenses incurred as a result of any such Transfer requested in writing by Borrower or made or effected as required by or pursuant to the terms of the Operative Agreements or made or effected in connection with or pursuant to the exercise of remedies under any Operative Agreement;
(3) to the extent attributable to the gross negligence or willful misconduct of such Indemnitee or any “Related Indemnitee” (as defined at the end of this Section 9.1(b)) (other than gross negligence or willful misconduct imputed to such Person solely by reason of its interest in the Aircraft or being party to any Operative Agreement);
(4) to the extent attributable to the incorrectness or breach inaccuracy of any representation or warranty of such Indemnitee or made by any Related Indemniteeother Person in connection with the Proposed Sale, contained in or made pursuant to any Operative Agreementother than the Company;
(5C) the liability for indemnification, if any, of such Stockholder in the Proposed Sale and for the inaccuracy of any representations and warranties made by the Company in connection with such Proposed Sale, is several and not joint with any other Person, and is limited to the extent attributable amount of consideration paid to such Stockholder in connection with such Proposed Sale in accordance with the failure by such Indemnitee or any Related Indemnitee to perform or observe any express agreement, covenant, or condition on its part to be performed or observed in any Operative Agreement;
(6) to the extent attributable to the offer or sale by such Indemnitee or any Related Indemnitee of any interest in the Equipment Notes or its Commitment in violation provisions of the registration requirements Certificate of the Securities Act or in violation of the registration requirements of any applicable state or foreign securities Laws (other than any thereof caused by acts or omissions of BorrowerIncorporation);
(7D) liability shall be limited to the extent attributable such Stockholder’s pro rata share (determined in proportion to Security Agent’s failure to distribute funds proceeds received and distributable by it such Stockholder in connection with such Proposed Sale in accordance with the Operative Agreementsprovisions of the Certificate of Incorporation) of a negotiated aggregate indemnification amount that applies equally to all Stockholders but that in no event exceeds the amount of consideration actually paid to such Stockholder in connection with such Proposed Sale, except with respect to claims related to fraud by such Stockholder, the liability for which need not be limited as to such Stockholder;
(8) other than during E) upon the existence consummation of an Event the Proposed Sale, (I) each Preferred Holder and each holder of DefaultCommon Shares will receive the same form of consideration for their Common Shares and Preferred Shares, to the extent attributable to the authorization or giving or withholding of any future amendments, supplements, waivers, or consents (II) with respect to any Operative Agreementthe Preferred Shares, other than any requested each Preferred Holder will receive the same amount of consideration per Preferred Share, (III) each holder of Common Shares will receive the same amount of consideration per Common Share, and (IV) unless the holders of at least seventy-five percent (75%) of the Preferred Shares elect otherwise by Borrower or required by or made pursuant written notice given to the terms Company at least fifteen (15) days prior to the effective date of any such Proposed Sale, the aggregate consideration receivable by all holders of the Operative Agreements Preferred Shares and Common Shares shall be allocated among the holders of Preferred Shares and Common Shares on the basis of the relative liquidation preferences to which the holders of Preferred Shares and the holders of Common Stock are entitled in a Deemed Liquidation Event (unless such requirement results from assuming for this purpose that the actions Proposed Sale is a Deemed Liquidation Event) in accordance with the Certificate of an Indemnitee not required by or made pursuant Incorporation in effect immediately prior to the Operative Agreements);Proposed Sale; and
(9F) subject to clause (E) above, requiring the same form of consideration to be received by the holders of the Company’s Common and Preferred Stock, if any holders of any capital stock of the Company are given an option as to the extent attributable form and amount of consideration to any amount which any Indemnitee expressly agrees to pay or such Indemnitee expressly agrees shall not be paid by or be reimbursed by Borrower;
(10) to the extent that it is an ordinary and usual operating or overhead expense;
(11) for any Lien attributable to such Indemnitee or any Related Indemnitee that Borrower is not obligated to discharge under the Operative Agreements;
(12) if another provision of an Operative Agreement specifies the extent of Borrower’s responsibility or obligation with respect to such Expense, to the extent arising from a cause other than Borrower’s failure to comply with such specified responsibility or obligation; or
(13) to the extent imposed on an Indemnitee received as a result of any non-exempt “prohibited transaction” under 406(a) of ERISA or Section 4975(c)(1) of the Code caused by such Indemnitee. For purposes of this Section 9.1Proposed Sale, a Person shall be considered a “Related Indemnitee” of an Indemnitee if that Person is an Affiliate or employer all holders of such Indemnitee, a director, officer, employee, agent, or servant of such Indemnitee or any such Affiliatecapital stock will be given the same option.
Appears in 2 contracts
Sources: Stockholders Agreement (Syncardia Systems Inc), Stockholders Agreement (Syncardia Systems Inc)
Exceptions. Notwithstanding anything in Section 9.1(a)the foregoing, Borrower shall a Stockholder will not be required to indemnify, protect, defend or hold harmless comply with Section 8.1 above in connection with any Indemnitee pursuant to Section 9.1(aproposed Sale of the Company (the “Proposed Sale”) against any Expense of such Indemniteeunless:
(1a) for any Taxes representations and warranties to be made by such Stockholder in connection with the Proposed Sale are limited to representations and warranties related to authority, ownership and the ability to convey title to such Stockholder’s Shares, including, without limitation, representations and warranties that (i) the Stockholder holds all right, title and interest in and to the Shares such Stockholder purports to hold, free and clear of all liens and encumbrances, (ii) the obligations of the Stockholder in connection with the transaction have been duly authorized, if applicable, (iii) the documents to be entered into by the Stockholder have been duly executed by the Stockholder and delivered to the acquiror and are enforceable against the Stockholder in accordance with their respective terms and (iv) neither the execution and delivery of documents to be entered into in connection with the transaction, nor the performance of the Stockholder’s obligations thereunder, will cause a breach or a loss violation of Tax Benefitthe terms of any agreement, whether law or not Borrower judgment, order or decree of any court or governmental agency by which such Stockholder is required to indemnify therefor pursuant to Section 9.3subject or bound;
(2b) the Stockholder is not required to agree (unless such Stockholder is a Company officer or employee) to the extent attributable any covenant not to any Transfer (voluntary or involuntary) by or on behalf of such Indemnitee of any Equipment Note, Commitment or interest therein, except for reasonable out-of-pocket costs and expenses incurred as a result of any such Transfer requested in writing by Borrower or made or effected as required by or pursuant to the terms of the Operative Agreements or made or effected compete in connection with or pursuant to the exercise of remedies under any Operative AgreementProposed Sale;
(3c) to the extent attributable to Stockholder shall not be liable for the gross negligence or willful misconduct of such Indemnitee or any “Related Indemnitee” (as defined at the end of this Section 9.1(b)) (other than gross negligence or willful misconduct imputed to such Person solely by reason of its interest in the Aircraft or being party to any Operative Agreement);
(4) to the extent attributable to the incorrectness or breach inaccuracy of any representation or warranty of such Indemnitee or made by any Related Indemniteeother Person in connection with the Proposed Sale, contained in or made pursuant to any Operative Agreement;
other than the Company (5) except to the extent attributable that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the failure Company as well as breach by such Indemnitee or any Related Indemnitee to perform or observe any express agreement, covenant, or condition on its part to be performed or observed in any Operative Agreement;
(6) to the extent attributable to the offer or sale by such Indemnitee or any Related Indemnitee stockholder of any interest in the Equipment Notes or its Commitment in violation of the registration requirements of the Securities Act or in violation of the registration requirements of any applicable state or foreign securities Laws (other than any thereof caused identical representations, warranties and covenants provided by acts or omissions of Borrowerall stockholders);
(7d) the liability for indemnification, if any, of such Stockholder in the Proposed Sale and for the inaccuracy of any representations and warranties made by the Company in connection with such Proposed Sale, is several and not joint with any other person (except to the extent attributable that funds may be paid out of an escrow established to Security Agent’s failure cover breach of representations, warranties and covenants of the Company as well as breach by any stockholder of any identical representations, warranties and covenants provided by all stockholders), and subject to distribute funds received and distributable by it the provisions of the Restated Certificate related to the allocation of the escrow is pro rata in proportion to the amount of consideration paid to such Stockholder in connection with such Proposed Sale (in accordance with the Operative Agreementsprovisions of the Restate Certificate);
(8) other than during e) liability shall be limited to such Stockholder’s applicable share (determined based on the existence respective proceeds payable to each Stockholder in connection with such Proposed Sale in accordance with the provisions of an Event the Restated Certificate) of Defaulta negotiated aggregate indemnification amount that applies equally to all Stockholders but that in no event exceeds the amount of consideration paid to such Stockholder in connection with such Proposed Sale, to the extent attributable to the authorization or giving or withholding of any future amendments, supplements, waivers, or consents except with respect to any Operative Agreementclaims related to fraud by such Stockholder, the liability for which need not be limited as to such Stockholder;
(f) upon the consummation of the Proposed Sale, (i) each holder of each class or series of the Company’s stock will receive the same form of consideration for their shares of such class or series as is received by other than any requested holders in respect of their shares of such same class or series of stock, (ii) each holder of a series of Preferred Stock will receive the same amount of consideration per share of such series of Preferred Stock as is received by Borrower or required other holders in respect of their shares of such same series, (iii) each holder of Common Stock will receive the same amount of consideration per share of Common Stock as is received by or made pursuant to other holders in respect of their shares of Common Stock, and (iv) unless waived in accordance with the terms of the Operative Agreements (unless such requirement results from the actions of an Indemnitee not Restated Certificate and as may be required by or made pursuant law, the aggregate consideration receivable by all holders of the Preferred Stock and Common Stock shall be allocated among the holders of Preferred Stock and Common Stock on the basis of the relative liquidation preferences to which the holders of each respective series of Preferred Stock and the holders of Common Stock are entitled in a Deemed Liquidation Event (assuming for this purpose that the Proposed Sale is a Deemed Liquidation Event) in accordance with the Restated Certificate in effect immediately prior to the Operative Agreements);
(9) Proposed Sale; provided, however, that, notwithstanding the foregoing, if the consideration to the extent attributable to any amount which any Indemnitee expressly agrees to pay or such Indemnitee expressly agrees shall not be paid in exchange for the Shares includes any securities and due receipt thereof by any Stockholder would require under applicable law (x) the registration or be reimbursed by Borrower;
(10) to the extent that it is an ordinary and usual operating qualification of such securities or overhead expense;
(11) for of any Lien attributable to such Indemnitee person as a broker or any Related Indemnitee that Borrower is not obligated to discharge under the Operative Agreements;
(12) if another provision of an Operative Agreement specifies the extent of Borrower’s responsibility dealer or obligation agent with respect to such Expensesecurities; or (y) the provision to any Stockholder of any information other than such information as a prudent issuer would generally furnish in an offering made solely to “accredited investors” as defined in Regulation D promulgated under the Securities Act, the Company may cause to be paid to any such Stockholder in lieu thereof, against surrender of the Shares which would have otherwise been sold by such Stockholder, an amount in cash equal to the extent arising from a cause other than Borrower’s failure to comply with fair value (as determined in good faith by the Board) of the securities which such specified responsibility or obligationStockholder would otherwise receive as of the date of the issuance of such securities in exchange for the Shares; orand
(13g) subject to Section 8.2(f) above, requiring the same form of consideration to be available to the extent imposed on holders of any single class or series of capital stock, if any holders of a series or class of capital stock of the Company are given an Indemnitee option as to the form and amount of consideration to be received as a result of any non-exempt “prohibited transaction” under 406(a) of ERISA or Section 4975(c)(1) of the Code caused by such Indemnitee. For purposes of this Section 9.1Proposed Sale, a Person shall be considered a “Related Indemnitee” of an Indemnitee if that Person is an Affiliate or employer all holders of such Indemniteeseries or class of capital stock will be given the same option; provided, however, that nothing in this clause (f) shall entitle any Stockholder to receive any form of consideration that such Stockholder would be ineligible to receive as a director, officer, employee, agent, or servant result of such Indemnitee Stockholder’s failure to satisfy any condition, requirement or any such Affiliatelimitation that is generally applicable to the Company’s stockholders.
Appears in 2 contracts
Sources: Investors' Rights Agreement (ThredUp Inc.), Investors' Rights Agreement (ThredUp Inc.)
Exceptions. Notwithstanding anything in Section 9.1(a), Borrower shall not be required to indemnify, protect, defend or hold harmless any Indemnitee pursuant to Section 9.1(a) against any Expense of such Indemnitee:
(1) for any Taxes or a loss of Tax Benefit, whether or not Borrower is required to indemnify therefor pursuant to Section 9.3;
(2) 4.1 Any other provision herein to the extent attributable to any Transfer (voluntary or involuntary) by or on behalf of such Indemnitee of any Equipment Notecontrary notwithstanding, Commitment or interest therein, except for reasonable out-of-pocket costs and expenses incurred as a result of any such Transfer requested in writing by Borrower or made or effected as required by or pursuant to the terms of this Agreement the Operative Agreements Corporation shall not be obligated:
(a) To indemnify or made advance expenses to the Indemnified Party with respect to Proceedings initiated or effected brought voluntarily by the Indemnified Party and not by way of defense, unless (i) the Proceedings were brought to establish or enforce a right to indemnification under this Agreement, the DGCL or any other statute or law, (ii) the Board authorized the Proceeding (or any part of any Proceeding) prior to its initiation or (iii) the Corporation provides the indemnification, in connection with or its sole discretion, pursuant to the exercise of remedies powers vested in the Corporation under any Operative Agreement;applicable law; or
(3b) to To indemnify the extent attributable to Indemnified Party for any expenses incurred by the gross negligence or willful misconduct of such Indemnitee or any “Related Indemnitee” (as defined at the end of this Section 9.1(b)) (other than gross negligence or willful misconduct imputed to such Person solely by reason of its interest in the Aircraft or being party to any Operative Agreement);
(4) to the extent attributable to the incorrectness or breach of any representation or warranty of such Indemnitee or any Related Indemnitee, contained in or made pursuant to any Operative Agreement;
(5) to the extent attributable to the failure by such Indemnitee or any Related Indemnitee to perform or observe any express agreement, covenant, or condition on its part to be performed or observed in any Operative Agreement;
(6) to the extent attributable to the offer or sale by such Indemnitee or any Related Indemnitee of any interest in the Equipment Notes or its Commitment in violation of the registration requirements of the Securities Act or in violation of the registration requirements of any applicable state or foreign securities Laws (other than any thereof caused by acts or omissions of Borrower);
(7) to the extent attributable to Security Agent’s failure to distribute funds received and distributable by it in accordance with the Operative Agreements;
(8) other than during the existence of an Event of Default, to the extent attributable to the authorization or giving or withholding of any future amendments, supplements, waivers, or consents Indemnified Party with respect to any Operative claim, action or proceeding instituted to enforce or interpret this Agreement, other than if a court of competent jurisdiction determines that any requested by Borrower or required by or made pursuant to the terms of the Operative Agreements (unless material assertions made by the Indemnified Party in such requirement results from the actions of an Indemnitee Proceedings was not required by made in good faith or made pursuant to the Operative Agreements);
(9) to the extent attributable to any amount which any Indemnitee expressly agrees to pay or such Indemnitee expressly agrees shall not be paid by or be reimbursed by Borrower;
(10) to the extent that it is an ordinary and usual operating or overhead expense;
(11) for any Lien attributable to such Indemnitee or any Related Indemnitee that Borrower is not obligated to discharge under the Operative Agreements;
(12) if another provision of an Operative Agreement specifies the extent of Borrower’s responsibility or obligation with respect to such Expense, to the extent arising from a cause other than Borrower’s failure to comply with such specified responsibility or obligationwas frivolous; or
(13c) to To indemnify the extent imposed on Indemnified Party for (i) an Indemnitee as a result accounting of any non-exempt “prohibited transaction” under 406(aprofits made from the purchase and sale (or sale and purchase) by Indemnified Party of ERISA or securities of the Corporation within the meaning of Section 4975(c)(116(b) of the Code caused by such Indemnitee. For purposes Securities Exchange Act of this Section 9.11934, a Person shall be considered a as amended (the “Related Indemnitee” of an Indemnitee if that Person is an Affiliate or employer of such Indemnitee, a director, officer, employee, agentExchange Act”), or servant similar provisions of such Indemnitee state statutory law or common law, or (ii) any such Affiliatereimbursement of the Corporation by the Indemnified Party of any bonus or other incentive-based or equity-based compensation or of any profits realized by the Indemnified Party from the sale of securities of the Corporation, as required in each case under the Exchange Act; or
(d) To indemnify the Indemnified Party for expenses or liabilities of any type whatsoever which have been paid directly to the Indemnified Party by an insurance carrier under a policy of directors’ and officers’ liability insurance maintained by the Corporation, except with respect to any excess beyond the amount paid under any insurance policy or other indemnity provision.
Appears in 2 contracts
Sources: Indemnification Agreement (Oppenheimer Holdings Inc), Indemnification Agreement (Oppenheimer Holdings Inc)
Exceptions. Notwithstanding anything in Section 9.1(a), Borrower shall not be required to indemnify, protect, defend or hold harmless any Indemnitee pursuant to Section 9.1(a) against any Expense of such Indemnitee:
(1) for any Taxes or a loss of Tax Benefitbenefit, whether or not Borrower is required to indemnify therefor pursuant to Section 9.3;
(2) to the extent attributable to any Transfer (voluntary or involuntary) by or on behalf of such Indemnitee of any Equipment Note, Commitment Note or interest therein, except for reasonable out-of-pocket costs and expenses incurred as a result of any such Transfer requested in writing by Borrower or made or effected as required by or pursuant to the terms of the Operative Agreements or made or effected in connection with or pursuant to the exercise of remedies under any Operative Agreement;
(3) to the extent attributable to the gross negligence or willful misconduct of such Indemnitee or any “Related Indemnitee” (as defined at the end of this Section 9.1(b)) (other than gross negligence or willful misconduct imputed to such Person solely by reason of its interest in the Aircraft or being party to any Operative Agreement);
(4) to the extent attributable to the incorrectness or breach of any representation or warranty warranty, of such Indemnitee or any Related Indemnitee, contained in or made pursuant to any Operative Agreement;
(5) to the extent attributable to the failure failure, by such Indemnitee or any Related Indemnitee Indemnitee, to perform or observe any express agreement, covenant, or condition on its part to be performed or observed in any Operative Agreement;
(6) to the extent attributable to the offer or sale sale, by such Indemnitee or any Related Indemnitee Indemnitee, of any interest in the Equipment Notes Notes, or its Commitment any similar interest, in violation of the registration requirements of the Securities Act or in violation of the registration requirements of any other applicable state federal, state, or foreign securities Laws (other than any thereof caused by acts or omissions of Borrower);
(7) (aa) with respect to any Indemnitee other than the Mortgagee, to the extent attributable to Security Agentsuch Mortgagee’s failure to distribute funds received and distributable by it in accordance with the Operative Agreementsrelevant Mortgage and (bb) with respect to the Mortgagee, to the extent attributable to its negligence or willful misconduct in the distribution of funds received and distributable by it in accordance with the relevant Mortgage;
(8) other than during the existence of an Event of Default, to the extent attributable to the authorization or giving or withholding of any future amendments, supplements, waivers, or consents with respect to any Operative Agreement, other than any requested by Borrower or required by or made pursuant to the terms of the Operative Agreements (unless such requirement results from the actions of an Indemnitee not required by or made pursuant to the Operative Agreements);
(9) to the extent attributable to any amount which any Indemnitee expressly agrees to pay (other than amounts required to be paid by such Indemnitee in connection with the enforcement of its rights and remedies hereunder and under any Operative Agreement) or such Indemnitee expressly agrees shall not be paid by or be reimbursed by Borrower;
(10) to the extent that it is an ordinary and usual operating or overhead expense;
(11) for any Lien attributable to such Indemnitee or any Related Indemnitee that Borrower is not obligated to discharge under the Operative Agreements;
(12) if another provision of an Operative Agreement specifies the extent of Borrower’s responsibility or obligation with respect to such Expense, to the extent arising from a cause other than Borrower’s failure to comply with such specified responsibility or obligation; or
(13) to the extent imposed on incurred by or asserted against an Indemnitee as a result of any non-exempt “prohibited transaction” under 406(a) caused by it, within the meaning of ERISA § 406 or Section Code § 4975(c)(1) of the Code caused by such Indemnitee). For purposes of this Section 9.1, a Person shall be considered a “Related Indemnitee” of an Indemnitee if that Person is an Affiliate or employer of such Indemnitee, a director, officer, employee, agent, or servant of such Indemnitee or any such Affiliate, or a successor or permitted assign of any of the foregoing (other than pursuant to a Transfer). For the avoidance of doubt, no Transferee of an Equipment Note shall be entitled under this Section 9.1 to be indemnified, protected, defended or held harmless against any Expense to the extent that any prior holder of such Equipment Note would not have been entitled to such rights and protections at the time of its transfer.
Appears in 2 contracts
Sources: Loan Agreement (Airtran Holdings Inc), Loan Agreement (Airtran Holdings Inc)
Exceptions. Notwithstanding anything The indemnity provided for in Section 9.1(a), Borrower 7.01(a) shall not be required extend to indemnify, protect, defend or hold harmless any Indemnitee pursuant to Section 9.1(a) against any Expense of such Indemniteeany Indemnitee to the extent it:
(1i) for any Taxes or a loss of Tax Benefit, whether or not Borrower is required to indemnify therefor pursuant to Section 9.3;
(2) attributable to the extent attributable to any Transfer (voluntary willful misconduct or involuntary) by or on behalf gross negligence of such Indemnitee of any Equipment Note, Commitment or interest therein, except for reasonable out-of-pocket costs and expenses incurred as a result of any such Transfer requested in writing by Borrower or made or effected as required by or pursuant to the terms of the Operative Agreements or made or effected in connection with or pursuant to the exercise of remedies under any Operative Agreement;
(3) to the extent attributable to the gross negligence or willful misconduct of such Indemnitee or any “Related Indemnitee” (as defined at the end of this Section 9.1(b)) (other than gross negligence or willful misconduct imputed to such Person solely person by reason of its interest in the Aircraft or being party to any Operative Agreementtransaction documents);
(4ii) except to the extent fairly attributable to acts or events occurring prior thereto, is attributable to acts or events (other than the performance by Lessee of its obligations pursuant to the terms of the Operative Agreements) which occur after the Aircraft is no longer part of the Lessor's Estate or, if the Aircraft remains a part of the Lessor's Estate, after the expiration of the Term (unless the Aircraft is being returned at such time, in which case after return of physical possession; PROVIDED that if the Lease has been terminated pursuant to Section 17 thereof, the indemnity provided in Section 7.01(a) hereof shall survive for so long as Lessor shall be exercising remedies under such Section 17), or to acts or events which occur after return of possession of the Aircraft by the Lessee in accordance with the provisions of the Lease (subject to the foregoing proviso if the Lessor has terminated the Lease pursuant to Section 17 of the Lease); PROVIDED that nothing in this clause (ii) shall be deemed to exclude or limit any claim that any Indemnitee may have under Applicable Law by reason of an Event of Default or for damages from Lessee for breach of Lessee's covenants contained in the Lessee Documents or to release Lessee from any of its obligations under the Lessee Documents that expressly provide for performance after termination of the Term;
(iii) other than as expressly provided herein or in the other Operative Agreements, is a Tax or loss of a Tax benefit, whether or not the Lessee is required to indemnify therefor pursuant to Article 6 hereof or pursuant to the Tax Indemnity Agreement; 38
(iv) is a cost or expense expressly required to be paid by such Indemnitee or its permitted transferees (and not by the Lessee) pursuant to this Agreement or any other Operative Agreement and for which the Lessee is not otherwise obligated to reimburse such Indemnitee, directly or indirectly pursuant to the terms of this Agreement or such other Operative Agreement;
(v) is attributable to the incorrectness or breach by such Indemnitee of its representations or warranties, under any of the Operative Agreements except to the extent such incorrectness or breach was caused by a breach by Lessee of any representation or warranty or by any failure of such Indemnitee or Lessee to perform any Related Indemnitee, contained in or made pursuant to any obligation under an Operative Agreement;
(5vi) to the extent is attributable to the failure by such Indemnitee or any Related Indemnitee to perform any of its obligations under any of the Operative Agreements except to the extent such failure was caused by a breach by Lessee of any representation or observe warranty or by any express agreement, covenant, or condition on its part failure of Lessee to be performed or observed in perform any obligation under an Operative Agreement;
(6vii) is, in the case of the Owner Participant, Lessor's Liens attributable to the Owner Participant; in the case of the Owner Trustee, Lessor's Liens to the extent attributable to the Owner Trustee; in the case of Trust Company, Lessor's Liens to the extent attributable to Trust Company;
(viii) is, in the case of the Owner Participant or the Owner Trustee, attributable to the offer or sale by such Indemnitee or any Related Indemnitee of any interest in the Equipment Notes Aircraft, the Lessor's Estate or its Commitment the Trust Agreement or any similar interest (including an offer or sale resulting from bankruptcy or other proceedings for the relief of debtors in violation which such Indemnitee is the debtor), unless in each case such offer or sale shall occur pursuant to the exercise of remedies under Section 17 of the registration requirements of the Securities Act or in violation of the registration requirements of any applicable state or foreign securities Laws (other than any thereof caused by acts or omissions of Borrower)Lease;
(7ix) to in the extent attributable to Security Agent’s failure to distribute funds received and distributable by it in accordance with the Operative Agreements;
(8) other than during the existence of an Event of Default, to the extent attributable to the authorization or giving or withholding of any future amendments, supplements, waivers, or consents with respect to any Operative Agreement, other than any requested by Borrower or required by or made pursuant to the terms case of the Operative Agreements (unless such requirement results from the actions of an Indemnitee not required by or made pursuant to the Operative Agreements);
(9) to the extent attributable to any amount which any Indemnitee expressly agrees to pay or such Indemnitee expressly agrees shall not be paid by or be reimbursed by Borrower;
(10) to the extent that it Owner Participant, is an ordinary and usual operating Expense relating to, resulting from, arising out of or overhead expense;
(11) for any Lien attributable to such Indemnitee or any Related Indemnitee that Borrower is not obligated to discharge under the Operative Agreements;
(12) if another provision of an Operative Agreement specifies the extent of Borrower’s responsibility or obligation in connection with respect to such Expense, to the extent arising from a cause other than Borrower’s failure to comply with such specified responsibility or obligation; or
(13) to the extent imposed on an Indemnitee as a result of any non-exempt “"prohibited transaction” under 406(a) " within the meaning of Section 406 of ERISA or Section 4975(c)(1) of the Code caused by such Indemnitee. For purposes resulting from the direct or indirect use of this assets of any ERISA Plan to acquire or hold Owner Participant's interest in the Trust Estate or in the case of any transferee of the Owner Participant referred to in Section 9.15.01(c), a Person shall be considered a “Related Indemnitee” to purchase the Beneficial Interest pursuant to Section 5.01(c);
(x) except during the continuation of an Indemnitee if that Person Event of Default, is an Affiliate or employer attributable to any amendment to any of such Indemnitee, a director, officer, employee, agentthe Operative Agreements which is not requested, or servant consented to, by the Lessee or is not required or made pursuant to the terms of any of the Operative Agreements;
(xi) is attributable to the exercise by any Indemnitee of any right to inspect the Aircraft except with respect to any such inspection conducted while an Event of Default is continuing;
(xii) constitutes the loss of future profits of such Indemnitee or any losses attributable to such AffiliateIndemnitee's overhead; and
(xiii) arises from or is attributable to the like-kind exchange transaction described in the last sentence of Section 2.01(a) to the extent such Expenses exceed the amount of Expenses that would have been imposed in the absence of such like-kind exchange transaction.
Appears in 2 contracts
Sources: Participation Agreement (Republic Airways Holdings Inc), Participation Agreement (Republic Airways Holdings Inc)
Exceptions. Notwithstanding anything in Section 9.1(a), Borrower shall not be required to (a) Excluded Action or Omissions To indemnify, protect, defend exonerate or hold harmless Indemnitee for Expenses resulting from acts, omissions or transactions for which Indemnitee is prohibited from receiving indemnification, exoneration or hold harmless rights under this Agreement or applicable law; provided, however, that notwithstanding any limitation set forth in this Section 7(a) regarding the Company’s obligation to provide indemnification, exoneration or hold harmless rights to Indemnitee pursuant to shall be entitled under Section 9.1(a) against any Expense of such Indemnitee:
(1) for any Taxes or a loss of Tax Benefit, whether or not Borrower is required to indemnify therefor pursuant to Section 9.3;
(22(b) to the extent attributable to any Transfer (voluntary or involuntary) by or on behalf of such Indemnitee of any Equipment Note, Commitment or interest therein, except for reasonable out-of-pocket costs and expenses incurred as a result of any such Transfer requested in writing by Borrower or made or effected as required by or pursuant to the terms of the Operative Agreements or made or effected in connection with or pursuant to the exercise of remedies under any Operative Agreement;
(3) to the extent attributable to the gross negligence or willful misconduct of such Indemnitee or any “Related Indemnitee” (as defined at the end of this Section 9.1(b)) (other than gross negligence or willful misconduct imputed to such Person solely by reason of its interest in the Aircraft or being party to any Operative Agreement);
(4) to the extent attributable to the incorrectness or breach of any representation or warranty of such Indemnitee or any Related Indemnitee, contained in or made pursuant to any Operative Agreement;
(5) to the extent attributable to the failure by such Indemnitee or any Related Indemnitee to perform or observe any express agreement, covenant, or condition on its part to be performed or observed in any Operative Agreement;
(6) to the extent attributable to the offer or sale by such Indemnitee or any Related Indemnitee of any interest in the Equipment Notes or its Commitment in violation of the registration requirements of the Securities Act or in violation of the registration requirements of any applicable state or foreign securities Laws (other than any thereof caused by acts or omissions of Borrower);
(7) to the extent attributable to Security Agent’s failure to distribute funds received and distributable by it in accordance with the Operative Agreements;
(8) other than during the existence of an Event of Default, to the extent attributable to the authorization or giving or withholding of any future amendments, supplements, waivers, or consents receive Expense Advances hereunder with respect to any Operative Agreementsuch Claim unless and until a court having jurisdiction over the Claim shall have made a final judicial determination (as to which all rights of appeal therefrom have been exhausted or lapsed) that Indemnitee has engaged in acts, other than any requested by Borrower omissions or required by transactions for which Indemnitee is prohibited from receiving indemnification under this Agreement or made pursuant to the terms of the Operative Agreements (unless such requirement results from the actions of an Indemnitee not required by or made pursuant to the Operative Agreements);applicable law.
(9b) Claims Initiated by Indemnitee To indemnify, exonerate or hold harmless or make Expense Advances to the extent attributable to any amount which any Indemnitee expressly agrees to pay or such Indemnitee expressly agrees shall not be paid by or be reimbursed by Borrower;
(10) to the extent that it is an ordinary and usual operating or overhead expense;
(11) for any Lien attributable to such Indemnitee or any Related Indemnitee that Borrower is not obligated to discharge under the Operative Agreements;
(12) if another provision of an Operative Agreement specifies the extent of Borrower’s responsibility or obligation with respect to Claims initiated or brought voluntarily by Indemnitee and not by way of defense, counterclaim or cross claim, except (i) with respect to actions or proceedings brought to establish or enforce an indemnification, exoneration or hold harmless right under this Agreement or any other agreement or insurance policy or under the Company’s Certificate of Incorporation or Bylaws now or hereafter in effect relating to Claims for Indemnifiable Events, (ii) in specific cases if the Board of Directors has approved the initiation or bringing of such ExpenseClaim, to the extent arising from a cause other than Borrower’s failure to comply with such specified responsibility or obligation; or
(13iii) to the extent imposed on an Indemnitee as a result of any non-exempt “prohibited transaction” otherwise required under 406(a) of ERISA or Section 4975(c)(1) 145 of the Code caused by DGCL, regardless of whether Indemnitee ultimately is determined to be entitled to such Indemnitee. For purposes of this Section 9.1indemnification, a Person shall be considered a “Related Indemnitee” of an Indemnitee if that Person is an Affiliate exoneration, hold harmless right, Expense Advances or employer of such Indemniteeinsurance recovery, a director, officer, employee, agent, or servant of such Indemnitee or any such Affiliateas the case may be.
Appears in 2 contracts
Sources: Indemnification Agreement (Global Defense Technology & Systems, Inc.), Indemnification Agreement (Global Defense Technology & Systems, Inc.)
Exceptions. Notwithstanding anything in Section 9.1(a)any other provision of this Agreement, Borrower the Company shall not be required to indemnify, protect, defend or hold harmless any Indemnitee pursuant to Section 9.1(a) against any Expense of such Indemnitee:
(1) for any Taxes or a loss of Tax Benefit, whether or not Borrower is required to indemnify therefor pursuant to Section 9.3;
(2) to the extent attributable to any Transfer (voluntary or involuntary) by or on behalf of such Indemnitee of any Equipment Note, Commitment or interest therein, except for reasonable out-of-pocket costs and expenses incurred as a result of any such Transfer requested in writing by Borrower or made or effected as required by or obligated pursuant to the terms of this Agreement:
a. To indemnify or advance Expenses to Indemnitee with respect to Proceedings arising out of acts, omissions or transactions for which Indemnitee is prohibited from receiving indemnification under applicable law.
b. To indemnify or advance Expenses to Indemnitee with respect to Proceedings initiated or brought voluntarily by Indemnitee and not by way of defense, counterclaim or crossclaim, except (i) with respect to actions or proceedings brought to establish or enforce a right to indemnification under this Agreement or any other agreement or insurance policy or under the Operative Agreements Charter Documents now or made hereafter in effect relating to Proceedings for Indemnifiable Events, or effected (ii) in connection with specific cases if the Board of Directors of the Company has approved the initiation or pursuant to the exercise of remedies under any Operative Agreement;
(3) to the extent attributable to the gross negligence or willful misconduct bringing of such Indemnitee or any “Related Indemnitee” (as defined at the end of this Section 9.1(b)) (other than gross negligence or willful misconduct imputed to such Person solely Proceeding by reason of its interest in the Aircraft or being party to any Operative Agreement);
(4) to the extent attributable to the incorrectness or breach of any representation or warranty of such Indemnitee or any Related Indemnitee, contained in or made pursuant to any Operative Agreement;
(5) to the extent attributable to the failure by such Indemnitee or any Related Indemnitee to perform or observe any express agreement, covenant, or condition on its part to be performed or observed in any Operative Agreement;
(6) to the extent attributable to the offer or sale by such Indemnitee or any Related Indemnitee of any interest in the Equipment Notes or its Commitment in violation a majority vote of the registration requirements of the Securities Act or in violation of the registration requirements of Disinterested Directors.
c. To indemnify Indemnitee for any applicable state or foreign securities Laws (other than any thereof caused Expenses incurred by acts or omissions of Borrower);
(7) to the extent attributable to Security Agent’s failure to distribute funds received and distributable by it in accordance with the Operative Agreements;
(8) other than during the existence of an Event of Default, to the extent attributable to the authorization or giving or withholding of any future amendments, supplements, waivers, or consents Indemnitee with respect to any Operative action instituted (i) by Indemnitee to enforce or interpret this Agreement, other than any requested if a court having jurisdiction over such action determines that each of the material assertions made by Borrower Indemnitee as a basis for such action was not made in good faith or required was frivolous, or (ii) by or made pursuant to in the terms name of the Operative Agreements (unless Company to enforce or interpret this Agreement, if a court having jurisdiction over such requirement results action determines that each of the material defenses asserted by Indemnitee in such action was made in bad faith or was frivolous.
d. To indemnify Indemnitee for Expenses, judgments, fines, penalties and the payment of profits arising from the actions purchase and sale by Indemnitee of securities in violation of Section 16(b) of the Securities Exchange Act of 1934, as amended, or any similar successor statute.
e. To indemnify Indemnitee for Liabilities or Expenses arising from an Indemnitee not required administrative or civil enforcement action commenced by or made pursuant to the Operative Agreements);
(9) a federal banking agency to the extent attributable to any amount which any Indemnitee expressly agrees to pay prohibited by the laws or such Indemnitee expressly agrees shall not be paid by or be reimbursed by Borrower;
(10) to the extent that it is an ordinary and usual operating or overhead expense;
(11) for any Lien attributable to such Indemnitee or any Related Indemnitee that Borrower is not obligated to discharge under the Operative Agreements;
(12) if another provision of an Operative Agreement specifies the extent of Borrower’s responsibility or obligation with respect to such Expense, to the extent arising from a cause other than Borrower’s failure to comply with such specified responsibility or obligation; or
(13) to the extent imposed on an Indemnitee as a result of any non-exempt “prohibited transaction” under 406(a) of ERISA or Section 4975(c)(1) of the Code caused by such Indemnitee. For purposes of this Section 9.1, a Person shall be considered a “Related Indemnitee” of an Indemnitee if that Person is an Affiliate or employer regulations of such Indemnitee, a director, officer, employee, agent, or servant of such Indemnitee or any such Affiliateagency.
Appears in 2 contracts
Sources: Indemnification Agreement (Cobiz Inc), Indemnification Agreement (Cobiz Inc)
Exceptions. Notwithstanding anything The indemnity set forth in Section 9.1(a), Borrower 7(c)(i) shall not be required extend to indemnifyany Loss with respect to such Indemnified Party (A) to the extent that such Loss is caused by acts, protectomissions or events which occur after full and final compliance by Lessee with all the terms of the Operative Agreements, defend (B) to the extent such Loss is caused by acts, omissions or hold harmless events which occur following the earlier of: (I) acceptance of possession of the Airframe or any Indemnitee Engine or Part by Lessor or its designee pursuant to the terms of the Lease (other than pursuant to Section 9.1(a15 thereof, in which case Lessee's liability under this Section 7(c) against any Expense shall survive for so long as Lessor shall be entitled to exercise remedies under such Section 15), (II) the termination of the Term in accordance with Section 9 of the Lease, or (III) the transfer of title to the Aircraft to Lessee (or its designee) pursuant to Section 10.1.4 or Section 18.2 of the Lease, (C) to the extent that such Indemnitee:
(1) for any Taxes Loss is a Tax or a loss of Tax Benefittax benefits, whether or not Borrower Lessee is required to indemnify therefor pursuant to Section 9.3;
7(b) hereof, (2D) to the extent attributable to any Transfer (voluntary that such Loss is caused by the willful misconduct or involuntary) by or on behalf gross negligence of such Indemnitee of any Equipment Note, Commitment or interest therein, except for reasonable out-of-pocket costs and expenses incurred as a result of any such Transfer requested in writing by Borrower or made or effected as required by or pursuant to the terms of the Operative Agreements or made or effected in connection with or pursuant to the exercise of remedies under any Operative Agreement;
(3) to the extent attributable to the gross negligence or willful misconduct of such Indemnitee or any “Related Indemnitee” (as defined at the end of this Section 9.1(b)) Indemnified Party (other than willful misconduct or gross negligence or willful misconduct imputed to such Person Indemnified Party solely by reason of its interest in the Aircraft Aircraft) or being party any material misrepresentation or violation or breach of any obligations of such Indemnified Party contained in the Operative Agreements then in force unless such misrepresentation, violation or breach is a result of Lessee's failure to comply with the terms of any Operative Agreement);
Agreement to which it is a party, or (4E) to the extent attributable to the incorrectness such Loss is associated with a sale, assignment or breach of any representation or warranty of such Indemnitee or any Related Indemnitee, contained in or made pursuant to any Operative Agreement;
(5) to the extent attributable to the failure transfer by such Indemnitee or any Related Indemnitee to perform or observe any express agreement, covenant, or condition on Indemnified Party of its part to be performed or observed in any Operative Agreement;
(6) to the extent attributable to the offer or sale by such Indemnitee or any Related Indemnitee of any respective interest in the Equipment Notes Aircraft, the Certificates or its Commitment in violation of the registration requirements of the Securities Act or in violation of the registration requirements of any applicable state or foreign securities Laws transactions contemplated hereby (other than any thereof caused by acts or omissions of Borrower);
(71) to the extent attributable to Security Agent’s failure to distribute funds received and distributable by it in accordance with the Operative Agreements;
(8) other than during the existence of an Event of Default, to the extent attributable to the authorization or giving or withholding of any future amendments, supplements, waivers, or consents with respect to any Operative Agreement, other than any requested by Borrower or as required by or made pursuant to the terms of the Operative Agreements and (unless such requirement results from 2) during the actions continuance of an Indemnitee not required by a Lease Default (of the type described in Section 14.1 or made pursuant to 14.5 of the Operative Agreements);
(9Lease) to or a Lease Event of Default or the extent attributable to any amount which any Indemnitee expressly agrees to pay or such Indemnitee expressly agrees shall not be paid by or be reimbursed by Borrower;
(10) to the extent that it is an ordinary and usual operating or overhead expense;
(11) for any Lien attributable to such Indemnitee or any Related Indemnitee that Borrower is not obligated to discharge exercise of remedies under the Operative Agreements;
(12Lease). This Section 7(c) if another provision of an Operative Agreement specifies the extent of Borrower’s responsibility or obligation with respect to such Expense, to the extent arising from does not constitute a cause other than Borrower’s failure to comply with such specified responsibility or obligation; or
(13) to the extent imposed on an Indemnitee as a result of any non-exempt “prohibited transaction” under 406(a) of ERISA or Section 4975(c)(1) guarantee of the Code caused by such Indemnitee. For purposes useful life or residual value of this Section 9.1, the Aircraft or a Person shall guarantee that the Certificates will be considered a “Related Indemnitee” of an Indemnitee if that Person is an Affiliate or employer of such Indemnitee, a director, officer, employee, agent, or servant of such Indemnitee or any such Affiliatepaid.
Appears in 2 contracts
Sources: Participation Agreement (Southwest Airlines Co), Participation Agreement (Southwest Airlines Co)
Exceptions. Notwithstanding anything any other provision in Section 9.1(a)this Agreement, Borrower the Company shall not be required to indemnify, protect, defend or hold harmless any Indemnitee pursuant to Section 9.1(a) against any Expense of such Indemnitee:
(1) for any Taxes or a loss of Tax Benefit, whether or not Borrower is required to indemnify therefor pursuant to Section 9.3;
(2) to the extent attributable to any Transfer (voluntary or involuntary) by or on behalf of such Indemnitee of any Equipment Note, Commitment or interest therein, except for reasonable out-of-pocket costs and expenses incurred as a result of any such Transfer requested in writing by Borrower or made or effected as required by or obligated pursuant to the terms of the Operative Agreements or made or effected in connection with or pursuant to the exercise of remedies under any Operative this Agreement;, to:
(3a) indemnify or advance Expenses to the extent attributable to the gross negligence or willful misconduct of such Indemnitee or any “Related Indemnitee” (as defined at the end of this Section 9.1(b)) (other than gross negligence or willful misconduct imputed to such Person solely by reason of its interest in the Aircraft or being party to any Operative Agreement);
(4) to the extent attributable to the incorrectness or breach of any representation or warranty of such Indemnitee or any Related Indemnitee, contained in or made pursuant to any Operative Agreement;
(5) to the extent attributable to the failure by such Indemnitee or any Related Indemnitee to perform or observe any express agreement, covenant, or condition on its part to be performed or observed in any Operative Agreement;
(6) to the extent attributable to the offer or sale by such Indemnitee or any Related Indemnitee of any interest in the Equipment Notes or its Commitment in violation of the registration requirements of the Securities Act or in violation of the registration requirements of any applicable state or foreign securities Laws (other than any thereof caused by acts or omissions of Borrower);
(7) to the extent attributable to Security Agent’s failure to distribute funds received and distributable by it in accordance with the Operative Agreements;
(8) other than during the existence of an Event of Default, to the extent attributable to the authorization or giving or withholding of any future amendments, supplements, waivers, or consents with respect to any Operative AgreementProceeding initiated, other than any requested by Borrower or required by brought or made by Indemnitee, including by way of cross-claim, counter claim or the like, except with respect to a Proceeding brought to establish or enforce a right to indemnification, unless Proceeding was authorized or consented to by the Board of Directors;
(b) indemnify Indemnitee with respect to any Proceeding in which final judgment is rendered against Indemnitee for an accounting of profits made from the purchase and sale or the sale and purchase by Indemnitee of securities of the Company pursuant to the terms provisions of Section 16(b) of the Operative Agreements (unless such requirement results from the actions of an Indemnitee not required by or made pursuant to the Operative Agreements);Act; or
(9c) to the extent attributable indemnify Indemnitee for any expenses incurred by Indemnitee with respect to any amount which any Proceeding instituted by Indemnitee expressly agrees to pay enforce or interpret this Agreement, unless Indemnitee is successful in establishing Indemnitee’s right to indemnification in such Indemnitee expressly agrees shall not be paid by Proceeding, in whole or be reimbursed by Borrower;
(10) in part, or unless and to the extent that it the court in such Proceeding shall determine that, despite Indemnitee’s failure to establish his right to indemnification, Indemnitee is an ordinary and usual operating or overhead expense;
(11entitled to indemnity for such expenses; provided, however that nothing in this Section 18(c) for any Lien attributable is intended to such Indemnitee or any Related Indemnitee that Borrower is not obligated to discharge under limit the Operative Agreements;
(12) if another provision of an Operative Agreement specifies the extent of BorrowerCompany’s responsibility or obligation with respect to such Expensethe advancement of expenses to Indemnitee in connection with any Proceeding instituted by Indemnitee to enforce or interpret this Agreement, as provided in Section 7 of this Agreement. Notwithstanding any other provision of this Agreement to the extent arising from a cause other than Borrower’s failure contrary, with respect to comply with such specified responsibility or obligation; or
(13) any reimbursements hereunder that are taxable as compensation to an Indemnitee, the extent imposed on an Indemnitee as a result of any non-exempt “prohibited transaction” under 406(a) of ERISA or Section 4975(c)(1) amount of the Code caused by such Indemnitee. For purposes Expenses that are eligible for reimbursement during one calendar year may not affect the amount of this Section 9.1reimbursements to be provided in any subsequent calendar year, a Person the reimbursement of an eligible expense shall be considered a “Related Indemnitee” made on or before the last day of an Indemnitee if that Person is an Affiliate the calendar year following the calendar year in which the expense was incurred, and the right to reimbursement of the expenses shall not be subject to liquidation or employer of such Indemnitee, a director, officer, employee, agent, or servant of such Indemnitee or exchange for any such Affiliateother benefit.
Appears in 2 contracts
Sources: Indemnification Agreement (Bonanza Creek Energy, Inc.), Indemnification Agreement (Bonanza Creek Energy, Inc.)
Exceptions. Notwithstanding anything in Section 9.1(a)the foregoing, Borrower shall a Stockholder will not be required to indemnify, protect, defend or hold harmless comply with Subsection 2.1 above in connection with any Indemnitee pursuant to Section 9.1(aproposed Sale of the Company (the “Proposed Sale”) against any Expense of such Indemniteeunless:
(1a) for any Taxes representations and warranties to be made by such Stockholder in connection with the Proposed Sale are limited to representations and warranties related to authority, ownership and the ability to convey title to such Shares, including but not limited to representations and warranties that (i) the Stockholder holds all right, title and interest in and to the Shares such Stockholder purports to hold, free and clear of all liens and encumbrances, (ii) the obligations of the Stockholder in connection with the transaction have been duly authorized, if applicable, (iii) the documents to be entered into by the Stockholder have been duly executed by the Stockholder and delivered to the acquirer and are enforceable against the Stockholder in accordance with their respective terms and (iv) neither the execution and delivery of documents to be entered into in connection with the transaction, nor the performance of the Stockholder’s obligations thereunder, will cause a breach or a loss violation of Tax Benefitthe terms of any agreement, whether law or not Borrower is required to indemnify therefor pursuant to Section 9.3judgment, order or decree of any court or governmental agency;
(2b) to the extent attributable to any Transfer (voluntary or involuntary) by or on behalf of such Indemnitee of any Equipment Note, Commitment or interest therein, except Stockholder shall not be liable for reasonable out-of-pocket costs and expenses incurred as a result of any such Transfer requested in writing by Borrower or made or effected as required by or pursuant to the terms of the Operative Agreements or made or effected in connection with or pursuant to the exercise of remedies under any Operative Agreement;
(3) to the extent attributable to the gross negligence or willful misconduct of such Indemnitee or any “Related Indemnitee” (as defined at the end of this Section 9.1(b)) (other than gross negligence or willful misconduct imputed to such Person solely by reason of its interest in the Aircraft or being party to any Operative Agreement);
(4) to the extent attributable to the incorrectness or breach inaccuracy of any representation or warranty of such Indemnitee or made by any Related Indemniteeother Person in connection with the Proposed Sale, contained in or made pursuant to any Operative Agreement;
other than the Company (5) except to the extent attributable that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the failure Company as well as breach by such Indemnitee or any Related Indemnitee to perform or observe any express agreement, covenant, or condition on its part to be performed or observed in any Operative Agreement;
(6) to the extent attributable to the offer or sale by such Indemnitee or any Related Indemnitee stockholder of any interest in the Equipment Notes or its Commitment in violation of the registration requirements of the Securities Act or in violation of the registration requirements of any applicable state or foreign securities Laws (other than any thereof caused identical representations, warranties and covenants provided by acts or omissions of Borrowerall stockholders);
(7c) to the extent attributable to Security Agent’s failure to distribute funds received liability for indemnification, if any, of such Stockholder in the Proposed Sale and distributable by it in accordance with for the Operative Agreements;
(8) other than during the existence of an Event of Default, to the extent attributable to the authorization or giving or withholding inaccuracy of any future amendmentsrepresentations and warranties made by the Company or its Stockholders in connection with such Proposed Sale, supplements, waivers, or consents is several and not joint with respect to any Operative Agreement, other than any requested by Borrower or required by or made pursuant to the terms of the Operative Agreements Person (unless such requirement results from the actions of an Indemnitee not required by or made pursuant to the Operative Agreements);
(9) to the extent attributable to any amount which any Indemnitee expressly agrees to pay or such Indemnitee expressly agrees shall not be paid by or be reimbursed by Borrower;
(10) except to the extent that it funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by any stockholder of any of identical representations, warranties and covenants provided by all stockholders), and is an ordinary pro rata in proportion to, and usual operating or overhead expense;does not exceed, the amount of consideration paid to such Stockholder in connection with such Proposed Sale; and
(11d) upon the consummation of the Proposed Sale, (i) each holder of each class or series of the Company’s stock will receive the same form of consideration for their shares of such class or series as is received by other holders in respect of their shares of such same class or series of stock, and (ii) each holder of Common Stock will receive the same amount of consideration per share of Common Stock as is received by other holders in respect of their shares of Common Stock; provided, however, that, notwithstanding the foregoing, if the consideration to be paid in exchange for the Stockholder Shares pursuant to this Subsection 2.3(c) includes any Lien attributable to securities and due receipt thereof by any Stockholder would require under applicable law (x) the registration or qualification of such Indemnitee securities or of any Related Indemnitee that Borrower is not obligated to discharge under the Operative Agreements;
(12) if another provision of an Operative Agreement specifies the extent of Borrower’s responsibility person as a broker or obligation dealer or agent with respect to such Expensesecurities or (y) the provision to any Stockholder of any information other than such information as a prudent issuer would generally furnish in an offering made solely to “accredited investors” as defined in Regulation D promulgated under the Securities Act, the Company may cause to be paid to any such Stockholder in lieu thereof, against surrender of the Stockholder Shares which would have otherwise been sold by such Stockholder, an amount in cash equal to the extent arising from a cause other than Borrower’s failure to comply with such specified responsibility or obligation; or
fair value (13) to as determined in good faith by the extent imposed on an Indemnitee as a result of any non-exempt “prohibited transaction” under 406(a) of ERISA or Section 4975(c)(1Company) of the Code caused by securities which such Indemnitee. For purposes Stockholder would otherwise receive as of this Section 9.1, a Person shall be considered a “Related Indemnitee” the date of an Indemnitee if that Person is an Affiliate or employer the issuance of such Indemnitee, a director, officer, employee, agent, or servant of such Indemnitee or any such Affiliatesecurities in exchange for the Stockholder Shares.
Appears in 2 contracts
Sources: Asset Acquisition Agreement (Cesca Therapeutics Inc.), Voting Agreement (Cesca Therapeutics Inc.)
Exceptions. Notwithstanding anything in Section 9.1(a)the foregoing, Borrower a Voting Party shall not be required to indemnify, protect, defend or hold harmless comply with Section 7(b) above in connection with any Indemnitee pursuant to Section 9.1(aproposed Sale of the Company (the “Proposed Sale”) against any Expense of such Indemniteeunless:
(1i) for any Taxes representations and warranties to be made by such Voting Party in connection with the Proposed Sale are limited to representations and warranties related to authority, ownership and the ability to convey title to such Shares, including but not limited to representations and warranties that (A) the Voting Party holds all right, title and interest in and to the Shares such Voting Party purports to hold, free and clear of all liens and encumbrances, (B) the obligations of the Voting Party in connection with the transaction have been duly authorized, if applicable, (C) the documents to be entered into by the Voting Party have been duly executed by the Voting Party and delivered to the acquirer and are enforceable against the Voting Party in accordance with their respective terms and (D) neither the execution and delivery of documents to be entered into in connection with the transaction, nor the performance of the Voting Party’s obligations thereunder, shall cause a breach or a loss violation of Tax Benefitthe terms of any agreement, whether law or not Borrower is required to indemnify therefor pursuant to Section 9.3judgment, order or decree of any court or governmental agency;
(2ii) to the extent attributable to any Transfer (voluntary or involuntary) by or on behalf of such Indemnitee of any Equipment Note, Commitment or interest therein, except Voting Party shall not be liable for reasonable out-of-pocket costs and expenses incurred as a result of any such Transfer requested in writing by Borrower or made or effected as required by or pursuant to the terms of the Operative Agreements or made or effected in connection with or pursuant to the exercise of remedies under any Operative Agreement;
(3) to the extent attributable to the gross negligence or willful misconduct of such Indemnitee or any “Related Indemnitee” (as defined at the end of this Section 9.1(b)) (other than gross negligence or willful misconduct imputed to such Person solely by reason of its interest in the Aircraft or being party to any Operative Agreement);
(4) to the extent attributable to the incorrectness or breach inaccuracy of any representation or warranty of such Indemnitee or made by any Related Indemniteeother person in connection with the Proposed Sale, contained in or made pursuant to any Operative Agreement;
other than the Company (5) except to the extent attributable that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the failure Company as well as breach by such Indemnitee or any Related Indemnitee to perform or observe any express agreement, covenant, or condition on its part to be performed or observed in any Operative Agreement;
(6) to the extent attributable to the offer or sale by such Indemnitee or any Related Indemnitee stockholder of any interest in the Equipment Notes or its Commitment in violation of the registration requirements of the Securities Act or in violation of the registration requirements of any applicable state or foreign securities Laws (other than any thereof caused identical representations, warranties and covenants provided by acts or omissions of Borrowerall stockholders);
(7iii) the liability for indemnification, if any, of such stockholder in the Proposed Sale and for the inaccuracy of any representations and warranties made by the Company in connection with such Proposed Sale, is several and not joint with any other person (except to the extent attributable that funds may be paid out of an escrow established to Security Agent’s failure cover breach of representations, warranties and covenants of the Company as well as breach by any stockholder of any of identical representations, warranties and covenants provided by all stockholders), and is pro rata in proportion to distribute funds received and distributable by it the amount of consideration paid to such Voting Party in connection with such Proposed Sale (in accordance with the Operative Agreements;
(8) other than during the existence of an Event of Default, to the extent attributable to the authorization or giving or withholding of any future amendments, supplements, waivers, or consents with respect to any Operative Agreement, other than any requested by Borrower or required by or made pursuant to the terms provisions of the Operative Agreements (unless such requirement results from the actions of an Indemnitee not required by or made pursuant to the Operative AgreementsCertificate);
(9iv) upon the consummation of the Proposed Sale, (A) each holder of each class or series of the Company’s stock shall receive the same form of consideration for their shares of such class or series as is received by other holders in respect of their shares of such same class or series of stock, (B) each holder of a series of Preferred Stock shall receive the same amount of consideration per share of such series of Preferred Stock as is received by other holders in respect of their shares of such same series, (C) each holder of Common Stock shall receive the same amount of consideration per share of Common Stock as is received by other holders in respect of their shares of Common Stock, and (D) unless the holders of at least sixty percent (60%) of the voting power of the outstanding shares of Preferred Stock elect otherwise by written notice given to the extent attributable Company at least 5 days prior to the effective date of any amount such Proposed Sale, the aggregate consideration receivable by all holders of the Preferred Stock and Common Stock shall be allocated among the holders of Preferred Stock and Common Stock on the basis of the relative liquidation preferences to which any Indemnitee expressly agrees the holders of each respective series of Preferred Stock and the holders of Common Stock are entitled in a Liquidation Event (assuming for this purpose that the Proposed Sale is a Liquidation Event) in accordance with the Company’s Certificate of Incorporation in effect immediately prior to pay or such Indemnitee expressly agrees shall not be paid by or be reimbursed by Borrower;the Proposed Sale; and
(10v) subject to clause (iv) above, requiring the same form of consideration to be available to the extent that it is holders of any single class or series of capital stock, if any holders of any capital stock of the Company are given an ordinary and usual operating or overhead expense;
(11) for any Lien attributable to such Indemnitee or any Related Indemnitee that Borrower is not obligated to discharge under the Operative Agreements;
(12) if another provision of an Operative Agreement specifies the extent of Borrower’s responsibility or obligation with respect to such Expense, option as to the extent arising from a cause other than Borrower’s failure form and amount of consideration to comply with such specified responsibility or obligation; or
(13) to the extent imposed on an Indemnitee be received as a result of any non-exempt “prohibited transaction” under 406(a) the Proposed Sale, all holders of ERISA or Section 4975(c)(1) of the Code caused by such Indemnitee. For purposes of this Section 9.1, a Person capital stock shall be considered a “Related Indemnitee” of an Indemnitee if that Person is an Affiliate or employer of such Indemnitee, a director, officer, employee, agent, or servant of such Indemnitee or any such Affiliategiven the same option.
Appears in 2 contracts
Sources: Voting Agreement (Prosper Marketplace Inc), Voting Agreement (Prosper Marketplace Inc)
Exceptions. Notwithstanding anything The indemnity provided for in Section 9.1(a8.01(a) shall not extend to any of the following:
(i) With respect to an Indemnitee, Taxes based upon, measured by or with respect to the net or gross income, items of tax preference or minimum tax or excess profits, receipts, value added (but only to the extent such value added tax is in the nature of an income tax), Borrower capital, franchise, net worth or conduct of business or other similarly-based Taxes of such Indemnitee (other than any Taxes in the nature of sales, use, transfer, excise, rental, license, ad valorem, property or other similarly based Taxes) (the "Income Taxes"); provided, however that the provisions of this paragraph (b)(i) shall not exclude from the indemnity described in Section 8.01(a) hereof, any Income Taxes to the extent such Income Taxes are imposed by any jurisdiction in which the Indemnitee would not be subject to such type of Income Taxes but for, or would be subject to such type of Income Taxes solely as a result of, (x) the operation, registration, location, presence, or use of the Aircraft, Airframe, any Engine or any Part thereof, in such jurisdiction or (y) the place of incorporation or principal office or the activities of the Lessee or any sublessee in such jurisdiction (it being understood that any such indemnity would be payable only to the extent of the net harm incurred by the Indemnitee from such Income Taxes, taking into account any incremental current Tax benefit in another tax jurisdiction resulting from payment of such Income Taxes); provided, further, that the provisions of this paragraph (b)(i) relating to Income Taxes shall not exclude from the indemnity described in Section 8.01(a) hereof any Income Taxes for which the Lessee would be required to indemnifyindemnify an Indemnitee (x) so that any payment under the Operative Agreements, protect, defend or hold harmless any Indemnitee pursuant to Section 9.1(a) against any Expense of such Indemnitee:
(1) for any Taxes or a loss of Tax Benefit, whether or not Borrower is otherwise required to indemnify therefor pursuant to Section 9.3;
be made on an After-Tax Basis, is made on an After-Tax Basis or (2y) to the extent attributable to any Transfer (voluntary or involuntary) by or on behalf of such Indemnitee of any Equipment Note, Commitment or interest therein, except for reasonable out-of-pocket costs and expenses incurred as a result of any such Transfer requested in writing by Borrower or made or effected as required by or pursuant to the terms last sentence of the Operative Agreements Section 8.02, 8.05, 9.02 or made or effected in connection with or pursuant to the exercise 9.05 of remedies under any Operative this Agreement;
(3ii) [Reserved];
(iii) Taxes arising out of or measured by acts, omissions, events or periods of time (or any combination of the foregoing) which occur after (and are not attributable to acts, omissions or events occurring contemporaneously with or prior to) (A) the payment in full of all amounts payable by the Lessee pursuant to and in accordance with the Operative Agreements, or the earlier discharge in full of the Lessee's payment obligations under and in accordance with the Lease and the Operative Agreements (and the Certificates in the case of the Indenture Trustee or the Trust Indenture Estate if the Lessee shall have assumed the Certificates pursuant to Section 7.11 of this Agreement), and (B) the earliest of (x) the expiration of the Term of the Lease and return of the Aircraft in accordance with Article 12 of the Lease, (y) the termination of the Lease in accordance with the applicable provisions of the Lease and return of the Aircraft in accordance with the Lease, or (z) the termination of the Lease in accordance with the applicable provisions of the Lease and the transfer of all right, title and interest in the Aircraft to the Lessee pursuant to its exercise of any of its purchase options set forth in Section 4.02(a) of the Lease, except that, notwithstanding anything in this Section 8.01(b) to the extent attributable contrary, Taxes incurred in connection with the exercise of any remedies pursuant to Article 17 of the Lease following the occurrence of an Event of Default shall not be excluded from the indemnity described in Section 8.01(a) hereof;
(iv) As to the Owner Trustee, Taxes imposed against the Owner Trustee upon or with respect to any fees for services rendered in its capacity as Owner Trustee under the Trust Agreement or, as to the Indenture Trustee, Taxes imposed against the Indenture Trustee upon or with respect to any fees received by it for services rendered in its capacity as Indenture Trustee under the Indenture;
(v) Taxes imposed on an Indemnitee that would not have been imposed but for the willful misconduct or gross negligence or willful misconduct of such Indemnitee or any “Related Indemnitee” (as defined at the end of this Section 9.1(b)) (other than gross negligence or willful misconduct not actually committed by but instead imputed to such Person solely Indemnitee by reason of such Indemnitee's participation in the transactions contemplated by the Operative Agreements) or the breach by such Indemnitee of any representation, warranty or covenant contained in the Operative Agreements or any document delivered in connection therewith (unless attributable to a breach of representation, warranty or covenant of the Lessee);
(vi) Taxes imposed on the Owner Trustee or the Owner Participant or any successor, assign or Affiliate thereof which became payable by reason of any voluntary or involuntary transfer or disposition by such Indemnitee subsequent to the Delivery Date, including revocation of the Trust, of any interest in some or all of the Aircraft, Airframe, Engines or Parts thereof or its interest in the Aircraft or being party to any Operative Agreement);
(4) to the extent attributable to the incorrectness or breach of any representation or warranty of such Indemnitee or any Related IndemniteeLessor's Estate, contained in or made pursuant to any Operative Agreement;
(5) to the extent attributable to the failure by such Indemnitee or any Related Indemnitee to perform or observe any express agreement, covenant, or condition on its part to be performed or observed in any Operative Agreement;
(6) to the extent attributable to the offer or sale by such Indemnitee or any Related Indemnitee of any interest in the Equipment Notes or its Commitment in violation of the registration requirements of the Securities Act or in violation of the registration requirements of any applicable state or foreign securities Laws (other than any thereof caused by acts (A) Taxes that result from transfers or omissions of Borrower);
(7) to the extent attributable to Security Agent’s failure to distribute funds received and distributable by it in accordance with the Operative Agreements;
(8) other than during the existence of dispositions which occur while an Event of Default, to Default under the extent attributable to Lease has occurred and is continuing at the authorization time of such transfer or giving disposition or withholding of (B) Taxes that result from any future amendments, supplements, waivers, transfer or consents with respect to any Operative Agreement, other than any requested by Borrower or required by or made disposition pursuant to the terms of the Operative Agreements Lease;
(unless such requirement results from vii) Taxes imposed on the actions of an Indemnitee not required by or made Owner Participant for which the Lessee is obligated to indemnify the Owner Participant pursuant to the Operative Agreements)Tax Indemnity Agreement;
(9viii) Notwithstanding anything herein to the extent attributable to contrary, Taxes imposed on a successor, assign or other transferee (including, without limitation, a transferee which is a new lending office of an original Indemnitee) of any amount entity or Person which any on the Delivery Date is an Indemnitee expressly agrees to pay (for purposes of this clause (viii), an "original Indemnitee") or such original Indemnitee expressly agrees shall not be paid by or be reimbursed by Borrower;
(10) to the extent that such Taxes exceed the amount of Taxes that would have been imposed and would have been indemnifiable pursuant to Section 8.01(a) hereof had there not been a succession, assignment or other transfer by such original Indemnitee of any such interest of such Indemnitee in the Aircraft or any Part thereof, any interest in or under any Operative Agreement, or any proceeds thereunder (it being understood that for purposes of determining the amount of indemnification that would have been due to such original Indemnitee with respect to a net income Tax, it shall be assumed that such original Indemnitee would be subject to taxation on its income at the highest marginal statutory rate applicable to it); provided, however, that the exclusion provided by this clause (viii) shall not apply in the case of a succession, assignment or other transfer (1) while an Event of Default under the Lease or the Indenture has occurred and is continuing; (2) required by any provision of the Operative Agreements (other than pursuant to Section 7.02 hereof) or (3) in the case of the Owner Participant, to any Tax other than an ordinary and usual operating or overhead expenseIncome Tax;
(11ix) for any Lien attributable to such Indemnitee or any Related Indemnitee that Borrower is not obligated to discharge under the Operative Agreements[Reserved];
(12x) if another provision of an Operative Agreement specifies any Taxes which have been included in the extent of Borrower’s responsibility or obligation Purchase Price;
(xi) any Taxes which would not have been imposed but for a Lessor's Lien with respect to such Expense, the Owner Participant or an Indenture Trustee's Lien with respect to the extent arising from a cause other than Borrower’s failure to comply with such specified responsibility or obligation; orIndenture Trustee;
(13xii) any Taxes imposed on the Owner Participant or any person who is a "disqualified person", within the meaning of Section 4975(e)(2) of the Code, or a "party in interest", within the meaning of Section 3(14) of ERISA, by virtue of such person's relationship to the extent imposed on an Indemnitee Owner Participant as a the result of any non-exempt “prohibited transaction” under 406(a) , within the meaning of Section 406 of ERISA or Section 4975(c)(1) of the Code caused by such Indemnitee. For purposes Code, occurring with respect to the purchase or holding of this Section 9.1, any Pass Through Certificate (or any funded participation therein) (i) over which purchase or holding the Owner Participant or any Affiliate thereof has discretion or control (other than in the capacity of a Person shall be considered a “Related Indemnitee” of an Indemnitee if that Person is an Affiliate directed trustee or employer of such Indemnitee, a director, officer, employee, agentcustodian), or servant (ii) by an employee benefit plan, within the meaning of such Indemnitee Section 3(3) of ERISA, or individual retirement account or plan subject to Section 4975 of the Code with respect to which the Owner Participant (or any Affiliate thereof) has the power, directly or indirectly, to appoint or terminate, or to negotiate the terms of the management agreement with, the person or persons having discretion or control (other than in the capacity of a directed trustee or custodian), over such Affiliatepurchase or holding; and
(xiii) Taxes imposed by any jurisdiction to the extent they would have been imposed on the Lessor or the Owner Participant for activities in such jurisdiction unrelated to the transactions contemplated by the Operative Agreements.
Appears in 2 contracts
Sources: Participation Agreement (Federal Express Corp), Participation Agreement (Federal Express Corp)
Exceptions. Notwithstanding anything in Section 9.1(a)the foregoing, Borrower shall a Stockholder will not be required to indemnify, protect, defend or hold harmless comply with Section 1.3(a) above in connection with any Indemnitee pursuant to Section 9.1(a) against any Expense of such Indemniteeproposed Drag-Along Transaction unless:
(1i) for any Taxes representations and warranties to be made by such Stockholder in connection with the Drag-Along Transaction are limited to representations and warranties related to authority, ownership and the ability to convey title to such Shares, including but not limited to representations and warranties that (A) the Stockholder holds all right, title and interest in and to the Shares such Stockholder purports to hold, free and clear of all liens and encumbrances, (B) the obligations of the Stockholder in connection with the Drag-Along Transaction have been duly authorized, if applicable, (C) the documents to be entered into by the Stockholder have been duly executed by the Stockholder and delivered to the Drag-Along Offeror and are enforceable against the Stockholder in accordance with their respective terms, and (D) neither the execution and delivery of documents to be entered into in connection with the Drag-Along Transaction, nor the performance of the Stockholder’s obligations thereunder, will cause a breach or a loss violation of Tax Benefitthe terms of any agreement, whether law or not Borrower judgment, order or decree of any court or governmental agency by which such Stockholder is required to indemnify therefor pursuant to Section 9.3subject or bound;
(2ii) to the extent attributable to any Transfer (voluntary or involuntary) by or on behalf of such Indemnitee of any Equipment Note, Commitment or interest therein, except Stockholder shall not be liable for reasonable out-of-pocket costs and expenses incurred as a result of any such Transfer requested in writing by Borrower or made or effected as required by or pursuant to the terms of the Operative Agreements or made or effected in connection with or pursuant to the exercise of remedies under any Operative Agreement;
(3) to the extent attributable to the gross negligence or willful misconduct of such Indemnitee or any “Related Indemnitee” (as defined at the end of this Section 9.1(b)) (other than gross negligence or willful misconduct imputed to such Person solely by reason of its interest in the Aircraft or being party to any Operative Agreement);
(4) to the extent attributable to the incorrectness or breach inaccuracy of any representation or warranty of such Indemnitee or made by any Related Indemniteeother Person in connection with the Drag-Along Transaction, contained in or made pursuant to any Operative Agreementother than the Company;
(5iii) to the extent attributable to liability for indemnification, if any, of such Stockholder in the failure by such Indemnitee or any Related Indemnitee to perform or observe any express agreement, covenant, or condition on its part to be performed or observed in any Operative Agreement;
(6) to Drag-Along Transaction and for the extent attributable to the offer or sale by such Indemnitee or any Related Indemnitee inaccuracy of any interest representations and warranties made by the Company in the Equipment Notes or its Commitment in violation of the registration requirements of the Securities Act or in violation of the registration requirements of connection with such Drag-Along Transaction, is several and not joint with any applicable state or foreign securities Laws (other than any thereof caused by acts or omissions of Borrower);
(7) to the extent attributable to Security Agent’s failure to distribute funds received Person, and distributable by it is pro rata in accordance with the Operative Agreementsconsideration received by such Stockholder;
(8) other than during iv) the existence of an Event of DefaultStockholder shall not, in connection with such Drag-Along Transaction, be required to the extent attributable to the authorization sign a non-compete agreement or giving or withholding of any future amendments, supplements, waivers, or consents with respect agree to any Operative Agreement, other than any requested by Borrower or required by or made pursuant to the terms of the Operative Agreements (unless such requirement results from the actions of an Indemnitee not required by or made pursuant to the Operative Agreements)non-compete covenant;
(9v) liability shall be limited to the extent attributable amount of consideration actually paid to any amount which any Indemnitee expressly agrees to pay or such Indemnitee expressly agrees shall not be paid by or be reimbursed by Borrower;Stockholder in connection with such Drag-Along Transaction; and
(10vi) to upon the extent that it is an ordinary and usual operating or overhead expense;
(11) for any Lien attributable to such Indemnitee or any Related Indemnitee that Borrower is not obligated to discharge under the Operative Agreements;
(12) if another provision of an Operative Agreement specifies the extent of Borrower’s responsibility or obligation with respect to such Expense, to the extent arising from a cause other than Borrower’s failure to comply with such specified responsibility or obligation; or
(13) to the extent imposed on an Indemnitee as a result of any non-exempt “prohibited transaction” under 406(a) of ERISA or Section 4975(c)(1) consummation of the Code caused by such Indemnitee. For purposes Drag-Along Transaction, each holder of this Section 9.1, a Person shall be considered a “Related Indemnitee” each class or series of an Indemnitee if that Person is an Affiliate or employer the Company’s stock will receive the same form and amount of consideration for each of its Shares of such Indemnitee, a director, officer, employee, agent, class or servant series as is received by each other holder in respect of each of its Shares of such Indemnitee same class or any such Affiliateseries of stock.
Appears in 2 contracts
Sources: Convertible Note Subscription Agreement, Stockholders Agreement (Quadrant Biosciences Inc)
Exceptions. Notwithstanding anything in Section 9.1(a)the forgoing, Borrower shall a Shareholder will not be required to indemnify, protect, defend or hold harmless comply with Section 2.2 above in connection with any Indemnitee pursuant to Section 9.1(aproposed Sale of the Company (the “Proposed Sale”) against any Expense of such Indemniteeunless:
(1a) for any Taxes representations and warranties to be made by such Shareholder in connection with the Proposed Sale are limited to representations and warranties related to authority, ownership and the ability to convey title to such Shares, including but not limited to representations and warranties that (i) the Shareholder holds all right, title and interest in and to the Shares such Shareholder purports to hold, free and clear of all liens and encumbrances, (ii) the obligations of the Shareholder in connection with the transaction have been duly authorized, if applicable, (iii) the documents to be entered into by the Shareholder have been duly executed by the Shareholder and delivered to the acquirer and are enforceable against the Shareholder in accordance with their respective terms and (iv) neither the execution and delivery of documents to be entered into in connection with the transaction, nor the performance of the Shareholder’s obligations thereunder, will cause a breach or a loss violation of Tax Benefitthe terms of any agreement, whether law or not Borrower is required to indemnify therefor pursuant to Section 9.3judgment, order or decree of any court or governmental agency;
(2b) to the extent attributable to any Transfer (voluntary or involuntary) by or on behalf of such Indemnitee of any Equipment Note, Commitment or interest therein, except Shareholder shall not be liable for reasonable out-of-pocket costs and expenses incurred as a result of any such Transfer requested in writing by Borrower or made or effected as required by or pursuant to the terms of the Operative Agreements or made or effected in connection with or pursuant to the exercise of remedies under any Operative Agreement;
(3) to the extent attributable to the gross negligence or willful misconduct of such Indemnitee or any “Related Indemnitee” (as defined at the end of this Section 9.1(b)) (other than gross negligence or willful misconduct imputed to such Person solely by reason of its interest in the Aircraft or being party to any Operative Agreement);
(4) to the extent attributable to the incorrectness or breach inaccuracy of any representation or warranty of such Indemnitee or made by any Related Indemniteeother Person in connection with the Proposed Sale, contained in or made pursuant to any Operative Agreementother than the Company;
(5c) the liability for indemnification, if any, of such Shareholder in the Proposed Sale and for the inaccuracy of any representations and warranties made by the Company in connection with such Proposed Sale, is several and not joint with any other Person, and is pro rata in accordance with such Shareholder’s relative stock ownership of the Company (but reflecting the overall priority of the Common Shares and the Preferred Shares, with any theoretical indemnification liability to be treated as a reduction of the purchase price for the purpose of allocating the proceeds thereof);
(d) liability shall be limited to the amount of consideration actually paid to such Shareholder in connection with such Proposed Sale, except with respect to (i) representations and warranties of such Shareholder related to authority, ownership and the ability to convey title to such Shares, (ii) any covenants made by such Shareholder with respect to confidentiality or voting related to the Proposed Sale or (iii) claims related to fraud or willful breach by such Shareholder, the liability for which need not be limited;
(e) upon the consummation of the Proposed Sale, (i) each holder of the Preferred Shares and each holder of Common Shares will receive the same form of consideration for their Preferred Shares and their Common Shares, (ii) each holder of the Series B Preferred will receive the same amount of consideration per share of the Series B Preferred (iii) each holder of the Series A Preferred will receive the same amount of consideration per share of the Series A Preferred, (iv) each holder of the Common Shares will receive the same amount of consideration per share of the Common Shares, and (v) unless the holders of at least a majority of the Preferred Shares, voting together as a single class, elect otherwise by written notice given to the Company at least ten (10) days prior to the effective date of any such Proposed Sale, the aggregate consideration receivable by all holders of the Series B Preferred, the Series A Preferred and the Common Shares shall be allocated among the holders of the Series B Preferred, the Series A Preferred and the Common Shares on the basis of the relative liquidation preferences to which the holders of the Series B Preferred, the Series A Preferred and the holders of the Common Shares are entitled in a Deemed Liquidation Event (assuming for this purpose that the Proposed Sale is a Deemed Liquidation Event) in accordance with the Company’s Articles of Incorporation in effect immediately prior to the Proposed Sale;
(f) subject to clause (e) above, requiring the same form of consideration to be received by the holders of the Common Shares and the Preferred Shares, if any holders of any capital stock of the Company are given an option as to the form and amount of consideration to be received as a result of the Proposed Sale, all holders of such capital stock will be given the same option; and
(g) in the case of the Investors, such Proposed Sale (i) provides solely for cash consideration or marketable securities, (ii) provides for the payment of consideration in a manner consistent with the provisions of Section 3 of Part A of the Company’s Articles of Incorporation and (iii) to the extent attributable to the failure by such Indemnitee or any Related Indemnitee to perform or observe any express agreement, covenant, or condition on its part to be performed or observed in any Operative Agreement;
(6) to the extent attributable to the offer or sale by such Indemnitee or any Related Indemnitee of any Investors retain an equity interest in the Equipment Notes Company or its Commitment in violation any successor entity following the consummation of such Proposed Sale, does not contain terms or conditions which would require any approval of the registration requirements Preferred Shares pursuant to Section 2(b) of Part A of the Securities Act or in violation Company’s Articles of the registration requirements of any applicable state or foreign securities Laws (other than any thereof caused by acts or omissions of Borrower);
(7) to the extent attributable to Security Agent’s failure to distribute funds received and distributable by it in accordance with the Operative Agreements;
(8) other than during the existence of an Event of Default, to the extent attributable to the authorization or giving or withholding of any future amendments, supplements, waivers, or consents with respect to any Operative Agreement, other than any requested by Borrower or required by or made pursuant to the terms of the Operative Agreements (unless such requirement results from the actions of an Indemnitee Incorporation which has not required by or made pursuant to the Operative Agreements);
(9) to the extent attributable to any amount which any Indemnitee expressly agrees to pay or such Indemnitee expressly agrees shall not be paid by or be reimbursed by Borrower;
(10) to the extent that it is an ordinary and usual operating or overhead expense;
(11) for any Lien attributable to such Indemnitee or any Related Indemnitee that Borrower is not obligated to discharge under the Operative Agreements;
(12) if another provision of an Operative Agreement specifies the extent of Borrower’s responsibility or obligation with respect to such Expense, to the extent arising from a cause other than Borrower’s failure to comply with such specified responsibility or obligation; or
(13) to the extent imposed on an Indemnitee as a result of any non-exempt “prohibited transaction” under 406(a) of ERISA or Section 4975(c)(1) of the Code caused by such Indemnitee. For purposes of this Section 9.1, a Person shall be considered a “Related Indemnitee” of an Indemnitee if that Person is an Affiliate or employer of such Indemnitee, a director, officer, employee, agent, or servant of such Indemnitee or any such Affiliatebeen obtained.
Appears in 2 contracts
Sources: Voting Agreement (Paylocity Holding Corp), Voting Agreement (Paylocity Holding Corp)
Exceptions. Notwithstanding anything in Section 9.1(a)the foregoing, Borrower shall a Stockholder will not be required to indemnify, protect, defend or hold harmless comply with Section 2.6(a) above in connection with any Indemnitee pursuant to Section 9.1(aproposed Sale of the Company (the “Proposed Sale”) against any Expense of such Indemniteeunless:
(1i) for any Taxes representations and warranties to be made by such Stockholder in connection with the Proposed Sale are limited to representations and warranties related to authority, ownership and the ability to convey title to such shares of Capital Stock, including, but not limited to, representations and warranties that (i) the Stockholder holds all right, title and interest in and to the shares of Capital Stock such Stockholder purports to hold, free and clear of all liens and encumbrances, (ii) the obligations of the Stockholder in connection with the transaction have been duly authorized, if applicable, (iii) the documents to be entered into by the Stockholder have been duly executed by the Stockholder and delivered to the acquirer and are enforceable against the Stockholder in accordance with their respective terms; and (iv) neither the execution and delivery of documents to be entered into in connection with the transaction, nor the performance of the Stockholder’s obligations thereunder, will cause a breach or a loss violation of Tax Benefitthe terms of any agreement, whether law or not Borrower is required to indemnify therefor pursuant to Section 9.3judgment, order or decree of any court or governmental agency;
(2ii) to the extent attributable to any Transfer (voluntary or involuntary) by or on behalf of such Indemnitee of any Equipment Note, Commitment or interest therein, except Stockholder shall not be liable for reasonable out-of-pocket costs and expenses incurred as a result of any such Transfer requested in writing by Borrower or made or effected as required by or pursuant to the terms of the Operative Agreements or made or effected in connection with or pursuant to the exercise of remedies under any Operative Agreement;
(3) to the extent attributable to the gross negligence or willful misconduct of such Indemnitee or any “Related Indemnitee” (as defined at the end of this Section 9.1(b)) (other than gross negligence or willful misconduct imputed to such Person solely by reason of its interest in the Aircraft or being party to any Operative Agreement);
(4) to the extent attributable to the incorrectness or breach inaccuracy of any representation or warranty of such Indemnitee or made by any Related Indemniteeother Person in connection with the Proposed Sale, contained in or made pursuant to any Operative Agreement;
other than the Company (5) except to the extent attributable that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the failure Company as well as breach by such Indemnitee or any Related Indemnitee to perform or observe any express agreement, covenant, or condition on its part to be performed or observed in any Operative Agreement;
(6) to the extent attributable to the offer or sale by such Indemnitee or any Related Indemnitee stockholder of any interest in the Equipment Notes or its Commitment in violation of the registration requirements of the Securities Act or in violation of the registration requirements of any applicable state or foreign securities Laws (other than any thereof caused identical representations, warranties and covenants provided by acts or omissions of Borrowerall stockholders);
(7iii) the liability for indemnification, if any, of such Stockholder in the Proposed Sale and for the inaccuracy of any representations and warranties made by the Company or its Stockholders in connection with such Proposed Sale, is several and not joint with any other Person (except to the extent attributable that funds may be paid out of an escrow established to Security Agentcover breach of representations, warranties and covenants of the Company as well as breach by any stockholder of any of identical representations, warranties and covenants provided by all stockholders), and subject to the provisions of the Restated Certificate related to the allocation of the escrow, is pro rata in proportion to, and does not exceed, the amount of consideration paid to such Stockholder in connection with such Proposed Sale;
(iv) liability shall be limited to such Stockholder’s failure applicable share (determined based on the respective proceeds payable to distribute funds received and distributable by it each Stockholder in connection with such Proposed Sale in accordance with the Operative Agreementsprovisions of the Restated Certificate) of a negotiated aggregate indemnification amount that applies equally to all Stockholders but that in no event exceeds the amount of consideration otherwise payable to such Stockholder in connection with such Proposed Sale, except with respect to claims related to fraud by such Stockholder, the liability for which need not be limited as to such Stockholder;
(8) v) upon the consummation of the Proposed Sale, (A) each holder of each class or series of Common Stock, Preferred Stock and Derivative Securities will receive the same form of consideration for their shares of such class or series as is received by other than during holders in respect of their shares of such same class or series of Common Stock, Preferred Stock and Derivative Securities, (B) each holder of a series of Preferred Stock will receive the existence same amount of an Event consideration per share of Defaultsuch series of Preferred Stock as is received by other holders in respect of their shares of such same series, (C) each holder of Common Stock will receive the same amount of consideration per share of Common Stock as is received by other holders in respect of their shares of Common Stock, and (D) unless the holders of (i) at least sixty-five percent (65%) of the then outstanding shares of Series C Preferred Stock and (ii) at least sixty percent (60%) of the then outstanding shares of Series B Preferred Stock elect to receive a lesser amount by written notice given to the extent attributable Company at least five (5) days prior to the authorization or giving or withholding effective date of any future amendmentssuch Proposed Sale, supplementsthe aggregate consideration receivable by all holders of Common Stock, waiversPreferred Stock and Derivative Securities shall be allocated among the holders of Common Stock, Preferred Stock and Derivative Securities on the basis of the relative liquidation preferences to which the holders of each respective series of Preferred Stock and the holders of Common Stock are entitled in a Liquidation Event (assuming for this purpose that the Proposed Sale is a Liquidation Event) in accordance with the Restated Certificate in effect immediately prior to the Proposed Sale; provided, however, that, notwithstanding the foregoing, if the consideration to be paid in exchange for a Key Holder’s Common Stock, Preferred Stock and Derivative Securities or consents with respect to any Operative Agreementan Investor’s Common Stock, other than any requested by Borrower or required by or made Preferred Stock and Derivative Securities, as applicable, pursuant to this Section 2.6(b)(ii) includes any securities and due receipt thereof by any Key Holder or Investor would require under applicable law (x) the terms registration or qualification of the Operative Agreements (unless such requirement results from the actions securities or of an Indemnitee not required by any Person as a broker or made pursuant to the Operative Agreements);
(9) to the extent attributable to any amount which any Indemnitee expressly agrees to pay dealer or such Indemnitee expressly agrees shall not be paid by or be reimbursed by Borrower;
(10) to the extent that it is an ordinary and usual operating or overhead expense;
(11) for any Lien attributable to such Indemnitee or any Related Indemnitee that Borrower is not obligated to discharge under the Operative Agreements;
(12) if another provision of an Operative Agreement specifies the extent of Borrower’s responsibility or obligation agent with respect to such Expensesecurities or (y) the provision to any Key Holder or Investor of any information other than such information as a prudent issuer would generally furnish in an offering made solely to “accredited investors” as defined in Regulation D promulgated under the Securities Act, the Company may cause to be paid to any such Key Holder or Investor in lieu thereof, against surrender of the Key Holder’s Common Stock, Preferred Stock and Derivative Securities or the Investor’s Common Stock, Preferred Stock and Derivative Securities, as applicable, that would have otherwise been sold by such Key Holder or Investor, an amount in cash equal to the extent arising from a cause other than Borrowerfair value (as determined in good faith by the Company) of the securities which such Key Holder or Investor would otherwise receive as of the date of the issuance of such securities in exchange for the Key Holder’s failure to comply with such specified responsibility Common Stock, Preferred Stock and Derivative Securities or obligationthe Investor’s Common Stock, Preferred Stock and Derivative Securities, as applicable; orand
(13vi) subject to Section 2.6(b)(ii) above requiring the same form of consideration to be available to the extent imposed on holders of any single class or series of Common Stock, Preferred Stock and Derivative Securities, if any holders of any Common Stock, Preferred Stock and Derivative Securities are given an Indemnitee option as to the form and amount of consideration to be received as a result of any non-exempt “prohibited transaction” under 406(a) the Proposed Sale, all holders of ERISA or Section 4975(c)(1) of such Common Stock, Preferred Stock and Derivative Securities will be given the Code caused by such Indemnitee. For purposes of same option; provided, however, that nothing in this Section 9.1, 2.6(b)(iii) shall entitle any holder to receive any form of consideration that such holder would be ineligible to receive as a Person shall be considered a “Related Indemnitee” of an Indemnitee if that Person is an Affiliate or employer result of such Indemniteeholder’s failure to satisfy any condition, a director, officer, employee, agent, requirement or servant of such Indemnitee or any such Affiliatelimitation that is generally applicable to the Company’s stockholders.
Appears in 2 contracts
Sources: Stockholders' Agreement, Stockholders Agreement (G1 Therapeutics, Inc.)
Exceptions. Notwithstanding anything the foregoing:
(i) Without the prior written consent of the Majority Series G Holders, no Series G Stockholder that is a Drag Along Stockholder will be required to comply with Section 4.2(a) above in connection with any proposed Sale of the Company (the “Proposed Sale”) unless each Series G Stockholder would reasonably be expected to receive, in connection with such Proposed Sale, an amount in respect of each share of Series G Preferred Stock held by such Series G Stockholder at least equal to the Series G Liquidation Preference (as defined in the Charter); and
(ii) No Drag-Along Stockholder will be required to comply with Section 9.1(a)4.2(a) above in connection with any Proposed Sale unless:
(A) any representations and warranties to be made by such Drag-Along Stockholder (other than representations and warranties being made by a Drag-Along Stockholder in his or her capacity as a current or former employee of or consultant to the Company) in connection with the Proposed Sale are limited to representations and warranties related to authority, Borrower ownership of the shares of Common Stock and/or Preferred Stock held by such Drag-Along Stockholder and the ability to convey title to such Shares, including but not limited to representations and warranties that (1) the Drag-Along Stockholder holds all right, title and interest in and to the Shares such Drag-Along Stockholder purports to hold, free and clear of all liens and encumbrances, (2) the obligations of the Drag-Along Stockholder in connection with the transaction have been duly authorized, if applicable, (3) the documents to be entered into by the Drag-Along Stockholder have been duly executed by the Drag-Along Stockholder and delivered to the acquirer and are enforceable against the Drag-Along Stockholder in accordance with their respective terms and (4) neither the execution and delivery of documents to be entered into in connection with the transaction, nor the performance of the Drag-Along Stockholder’s obligations thereunder, will cause a breach or violation of the terms of any agreement, law or judgment, order or decree of any court or governmental agency applicable to such Drag-Along Stockholder;
(B) the Drag-Along Stockholder shall not be required to indemnify, protect, defend or hold harmless any Indemnitee pursuant to Section 9.1(a) against any Expense of such Indemnitee:
(1) liable for any Taxes or a loss of Tax Benefit, whether or not Borrower is required to indemnify therefor pursuant to Section 9.3;
(2) to the extent attributable to any Transfer (voluntary or involuntary) by or on behalf of such Indemnitee of any Equipment Note, Commitment or interest therein, except for reasonable out-of-pocket costs and expenses incurred as a result of any such Transfer requested in writing by Borrower or made or effected as required by or pursuant to the terms of the Operative Agreements or made or effected in connection with or pursuant to the exercise of remedies under any Operative Agreement;
(3) to the extent attributable to the gross negligence or willful misconduct of such Indemnitee or any “Related Indemnitee” (as defined at the end of this Section 9.1(b)) (other than gross negligence or willful misconduct imputed to such Person solely by reason of its interest in the Aircraft or being party to any Operative Agreement);
(4) to the extent attributable to the incorrectness or breach inaccuracy of any representation or warranty of such Indemnitee or made by any Related Indemnitee, contained other person in or made pursuant to any Operative Agreement;
connection with the Proposed Sale other than the Company (5) except to the extent attributable that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the failure Company as well as breach by such Indemnitee or any Related Indemnitee to perform or observe any express agreement, covenant, or condition on its part to be performed or observed in any Operative Agreement;
(6) to the extent attributable to the offer or sale by such Indemnitee or any Related Indemnitee stockholder of any interest in the Equipment Notes or its Commitment in violation of the registration requirements of the Securities Act or in violation of the registration requirements of any applicable state or foreign securities Laws identical representations, warranties and covenants provided by all stockholders (other than any thereof caused by acts or omissions of Borroweran “Escrow”));
(7C) liability for indemnification, if any, of the Drag-Along Stockholder for the inaccuracy of any representations and warranties, or for the breach of any covenant, made by the Company or its Stockholders in connection with such Proposed Sale, is several and not joint with any other person (except to the extent attributable that funds may be paid out of an Escrow) and is pro rata in proportion to, and does not exceed, the aggregate consideration receivable by such Drag-Along Stockholder (whether directly or out of an Escrow) in the Proposed Sale;
(D) liability shall be limited to Security Agent’s failure the amount of consideration actually paid to distribute funds received such Drag-Along Stockholder in connection with such Proposed Sale, except with respect to claims related to fraud by such Drag-Along Stockholder, the liability for which need not be limited as to such Drag-Along Stockholder;
(E) upon the consummation of the Proposed Sale, the aggregate consideration receivable by all holders of the Preferred Stock and distributable by Common Stock shall be allocated among the holders of Preferred Stock and Common Stock on the basis of the relative liquidation preferences and amounts to which the holders of each respective series of Preferred Stock and the holders of Common Stock are entitled in a Liquidation Event (assuming for this purpose that the Proposed Sale is a Liquidation Event even if it is structured as a Stock Sale) in accordance with the Operative Agreements;Charter in effect immediately prior to the Proposed Sale; and
(8) other than during F) the existence Proposed Sale does not result in such Preferred Stockholder (or affiliate thereof) having any obligation to agree to any: (i) covenant not to compete; (ii) covenant not to solicit customers, employees or suppliers of an Event of Default, any party to the extent attributable Proposed Sale (or affiliate thereof); or (iii) covenant to the authorization amend, modify or giving terminate any contracts or withholding of any future amendments, supplements, waivers, commercial arrangements to which such Preferred Stockholder (or consents with respect to any Operative Agreement, other than any requested by Borrower or required by or made pursuant to the terms of the Operative Agreements (unless such requirement results from the actions of an Indemnitee not required by or made pursuant to the Operative Agreements);
(9affiliate thereof) to the extent attributable to any amount which any Indemnitee expressly agrees to pay or such Indemnitee expressly agrees shall not be paid by or be reimbursed by Borrower;
(10) to the extent that it is an ordinary and usual operating or overhead expense;
(11) for any Lien attributable to such Indemnitee or any Related Indemnitee that Borrower is not obligated to discharge under the Operative Agreements;
(12) if another provision of an Operative Agreement specifies the extent of Borrower’s responsibility or obligation with respect to such Expense, to the extent arising from a cause other than Borrower’s failure to comply with such specified responsibility or obligation; or
(13) to the extent imposed on an Indemnitee as a result of any non-exempt “prohibited transaction” under 406(a) of ERISA or Section 4975(c)(1) of the Code caused by such Indemnitee. For purposes of this Section 9.1, a Person shall be considered a “Related Indemnitee” of an Indemnitee if that Person is an Affiliate or employer of such Indemnitee, a director, officer, employee, agent, or servant of such Indemnitee or any such Affiliateparty.
Appears in 2 contracts
Sources: Stockholders Agreement, Stockholders Agreement (Neuronetics, Inc.)
Exceptions. Notwithstanding anything in Section 9.1(a)the foregoing, Borrower shall a Member will not be required to indemnify, protect, defend or hold harmless comply with Section 10.07(b) above in connection with any Indemnitee pursuant to Section 9.1(aproposed Sale of the Company (the “Proposed Sale”) against any Expense of such Indemniteeunless:
(1i) for any Taxes representations and warranties to be made by such Member in connection with the Proposed Sale are limited to representations and warranties related to authority, ownership and the ability to convey title to such Units, including but not limited to representations and warranties that (A) the Member holds all right, title and interest in and to the Units such Member purports to hold, free and clear of all liens and encumbrances, (B) the obligations of the Member in connection with the transaction have been duly authorized, if applicable, (C) the documents to be entered into by the Member have been duly executed by the Member and delivered to the acquirer and are enforceable against the Member in accordance with their respective terms and (D) neither the execution and delivery of documents to be entered into in connection with the transaction, nor the performance of the Member’s obligations thereunder, will cause a breach or a loss violation of Tax Benefitthe terms of any agreement, whether law or not Borrower is required to indemnify therefor pursuant to Section 9.3judgment, order or decree of any court or governmental agency;
(2ii) to the extent attributable to any Transfer (voluntary or involuntary) by or on behalf of such Indemnitee of any Equipment Note, Commitment or interest therein, except Member shall not be liable for reasonable out-of-pocket costs and expenses incurred as a result of any such Transfer requested in writing by Borrower or made or effected as required by or pursuant to the terms of the Operative Agreements or made or effected in connection with or pursuant to the exercise of remedies under any Operative Agreement;
(3) to the extent attributable to the gross negligence or willful misconduct of such Indemnitee or any “Related Indemnitee” (as defined at the end of this Section 9.1(b)) (other than gross negligence or willful misconduct imputed to such Person solely by reason of its interest in the Aircraft or being party to any Operative Agreement);
(4) to the extent attributable to the incorrectness or breach inaccuracy of any representation or warranty made by any other Person in connection with the Proposed Sale, other than for the inaccuracy of such Indemnitee any representation or any Related Indemnitee, contained warranty made by the Company in or made pursuant to any Operative Agreement;
connection with the Proposed Sale (5) except to the extent attributable that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the failure Company as well as breach by such Indemnitee or any Related Indemnitee to perform or observe any express agreement, covenant, or condition on its part to be performed or observed in any Operative Agreement;
(6) to the extent attributable to the offer or sale by such Indemnitee or any Related Indemnitee Member of any interest in the Equipment Notes or its Commitment in violation of the registration requirements of the Securities Act or in violation of the registration requirements of any applicable state or foreign securities Laws (other than any thereof caused identical representations, warranties and covenants provided by acts or omissions of Borrowerall Members);
(7iii) the liability for indemnification, if any, of such Member in the Proposed Sale and for the inaccuracy of any representations and warranties made by the Company or its Members in connection with such Proposed Sale, is several and not joint with any other Person (except to the extent attributable that funds may be paid out of an escrow established to Security Agent’s failure cover breach of representations, warranties and covenants of the Company as well as breach by any Member of any of identical representations, warranties and covenants provided by all Members), and subject to distribute funds received the provisions of this Agreement, and distributable by it is pro rata in proportion to the amount of consideration paid to such Member in connection with such Proposed Sale (in accordance with the Operative Agreements;
(8) other than during the existence provisions of an Event of Default, this Agreement related to the extent attributable to the authorization or giving or withholding of any future amendments, supplements, waivers, or consents with respect to any Operative Agreement, other than any requested by Borrower or required by or made pursuant to the terms allocation of the Operative Agreements (unless such requirement results from the actions of an Indemnitee not required by or made pursuant to the Operative Agreementsescrow);
(9iv) a Member’s liability shall be limited to such Member’s pro rata share (determined based on the extent attributable respective proceeds payable to any each Member in connection with such Proposed Sale in accordance with the provisions of this Agreement) of a negotiated aggregate indemnification amount that applies equally to all Members but that in no event exceeds the amount of consideration actually paid to such Member in connection with such Proposed Sale, except with respect to claims of fraud by such Member, the liability for which any Indemnitee expressly agrees to pay or such Indemnitee expressly agrees shall need not be paid by or be reimbursed by Borrowerlimited as to such Member;
(10v) upon the consummation of the Proposed Sale: (A) except as provided in Section 10.07(b)(vi), each holder of each class or series of Units will receive the same form of consideration for their Units of such class or series as is received by other holders in respect of their Units of such same class or series of Units; and (B) the aggregate consideration receivable by all holders of Units shall be allocated among the holders of Series B Preferred Units, Series A Preferred Units, Common Units and Incentive Units in accordance with Section 8.01 of this Agreement as if such consideration were distributed to the extent that it is an ordinary and usual operating or overhead expenseMembers pursuant thereto;
(11vi) for any Lien attributable except as provided in Section 10.07(b)(b)(vi), subject to such Indemnitee or any Related Indemnitee that Borrower is not obligated clause (v) above, requiring the same form of consideration to discharge under the Operative Agreements;
(12) if another provision of an Operative Agreement specifies the extent of Borrower’s responsibility or obligation with respect to such Expense, be available to the extent arising from a cause other than Borrower’s failure to comply with such specified responsibility holders of any single class or obligation; or
(13) series of Units, if any holders of any Units are given an option as to the extent imposed on an Indemnitee form and amount of consideration to be received as a result of the Proposed Sale, all holders of such Units will be given the same option; and
(vii) no Member who is not an employee shall be required to agree to any non-exempt “prohibited transaction” under 406(arestrictive covenant in connection with the Proposed Sale (including, without limitation, any covenant not to compete with or covenant not to solicit or hire customers, employees or suppliers of any party to the Proposed Sale) or any release of ERISA or Section 4975(c)(1) claims other than a release in customary form of claims arising solely in such Member’s capacity as a Member of the Code caused by such Indemnitee. For purposes of this Section 9.1, a Person shall be considered a “Related Indemnitee” of an Indemnitee if that Person is an Affiliate or employer of such Indemnitee, a director, officer, employee, agent, or servant of such Indemnitee or any such AffiliateCompany.
Appears in 2 contracts
Sources: Limited Liability Company Agreement (Apogee Therapeutics, Inc.), Limited Liability Company Agreement (Apogee Therapeutics, LLC)
Exceptions. Notwithstanding anything any provision in Section 9.1(a)this Agreement, Borrower the Company shall not be required to indemnify, protect, defend obligated under this Agreement:
(a) To indemnify Indemnitee for an accounting or hold harmless any Indemnitee disgorgement of profits pursuant to Section 9.1(a16(b) against any Expense of such Indemnitee:
the Securities Exchange Act of 1934, as amended, if applicable, or similar provisions of U.S. federal, state or local statutory law or common law, if Indemnitee is held conclusively by a court of competent jurisdiction to be liable therefor (1) for any Taxes or a loss of Tax Benefit, whether or not Borrower is required to indemnify therefor including pursuant to Section 9.3;
(2) to the extent attributable to any Transfer (voluntary or involuntary) by or on behalf of such Indemnitee of any Equipment Note, Commitment or interest therein, except for reasonable out-of-pocket costs and expenses incurred as a result of any such Transfer requested in writing by Borrower or made or effected as required by or pursuant to the terms of the Operative Agreements or made or effected in connection with or pursuant to the exercise of remedies under any Operative Agreement;
(3) to the extent attributable to the gross negligence or willful misconduct of such Indemnitee or any “Related Indemnitee” (as defined at the end of this Section 9.1(b)) (other than gross negligence or willful misconduct imputed to such Person solely by reason of its interest in the Aircraft or being party to any Operative Agreementsettlement arrangements);
(4b) To indemnify Indemnitee for any reimbursement of the Company by Indemnitee of any bonus or other incentive-based or equity-based compensation or of any profits realized by Indemnitee from the sale of securities of the Company, as required in each case under the Securities Exchange Act of 1934, as amended (including any such reimbursements that arise from an accounting restatement of the Company pursuant to Section 304 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 (the “▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act”), or the payment to the extent attributable to Company of profits arising from the incorrectness or breach purchase and sale by Indemnitee of any representation or warranty securities in violation of such Section 306 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act), if Indemnitee or any Related Indemnitee, contained in or made is held liable therefor (including pursuant to any Operative Agreement;
(5) to the extent attributable to the failure by such Indemnitee or any Related Indemnitee to perform or observe any express agreement, covenant, or condition on its part to be performed or observed in any Operative Agreement;
(6) to the extent attributable to the offer or sale by such Indemnitee or any Related Indemnitee of any interest in the Equipment Notes or its Commitment in violation of the registration requirements of the Securities Act or in violation of the registration requirements of any applicable state or foreign securities Laws (other than any thereof caused by acts or omissions of Borrowersettlement arrangements);
(7c) To advance expenses or provide indemnification in connection with any Proceeding (or any part of any Proceeding) initiated or brought voluntarily by Indemnitee, and not by way of defense, including any Proceeding (or any part of any Proceeding) initiated by Indemnitee against the Company or its directors, officers, employees, agents or other indemnitees, unless (i) the Company’s board of directors authorized the Proceeding (or the relevant part of the Proceeding) prior to its initiation, (ii) the Company provides the indemnification, in its sole discretion, pursuant to the extent attributable to Security Agent’s failure to distribute funds received and distributable by it powers vested in accordance with the Operative Agreements;
Company under applicable law; (8) other than during the existence of an Event of Default, to the extent attributable to the authorization or giving or withholding of any future amendments, supplements, waivers, or consents iii) with respect to Proceedings brought to establish or enforce a right to indemnification or advancement under this Agreement or any Operative Agreementother agreement, other than any requested by Borrower insurance policy, or under the Company’s Articles of Association, as now or hereafter in effect; or (iv) otherwise required by or made pursuant to the terms of the Operative Agreements (unless such requirement results from the actions of an Indemnitee not required by or made pursuant to the Operative Agreements);
(9) to the extent attributable to any amount which any Indemnitee expressly agrees to pay or such Indemnitee expressly agrees shall not be paid by or be reimbursed by Borrower;
(10) to the extent that it is an ordinary and usual operating or overhead expense;
(11) for any Lien attributable to such Indemnitee or any Related Indemnitee that Borrower is not obligated to discharge under the Operative Agreements;
(12) if another provision of an Operative Agreement specifies the extent of Borrower’s responsibility or obligation with respect to such Expense, to the extent arising from a cause other than Borrower’s failure to comply with such specified responsibility or obligationapplicable law; or
(13d) to the extent imposed on an To provide indemnification for any acts, omissions or transactions from which Indemnitee as a result may not be relieved of any non-exempt “prohibited transaction” liability under 406(a) of ERISA or Section 4975(c)(1) of the Code caused by such Indemnitee. For purposes of this Section 9.1, a Person shall be considered a “Related Indemnitee” of an Indemnitee if that Person is an Affiliate or employer of such Indemnitee, a director, officer, employee, agent, or servant of such Indemnitee or any such Affiliateapplicable law.
Appears in 2 contracts
Sources: Indemnification Agreement (BCD Semiconductor Manufacturing LTD), Indemnification Agreement (Ambow Education Holding Ltd.)
Exceptions. Notwithstanding anything in Section 9.1(a)the foregoing, Borrower shall a Stockholder will not be required to indemnifycomply with Section 5.1 above in connection with any proposed Sale Event of the Company (the “Proposed Sale”), protect, defend or hold harmless any Indemnitee pursuant to Section 9.1(a) against any Expense of such Indemniteeunless:
(1a) for any Taxes representations and warranties to be made by such Stockholder in connection with the Proposed Sale are limited to representations and warranties related to authority, ownership and the ability to convey title to such Shares, including, but not limited to, representations and warranties that (i) the Stockholder holds all right, title and interest in and to the Shares such Stockholder purports to hold, free and clear of all liens and encumbrances, (ii) the obligations of the Stockholder in connection with the transaction have been duly authorized, if applicable, (iii) the documents to be entered into by the Stockholder have been duly executed by the Stockholder and delivered to the acquirer and are enforceable against the Stockholder in accordance with their respective terms; and (iv) neither the execution and delivery of documents to be entered into in connection with the transaction, nor the performance of the Stockholder’s obligations thereunder, will cause a breach or a loss violation of Tax Benefitthe terms of any agreement, whether law or not Borrower is required to indemnify therefor pursuant to Section 9.3judgment, order or decree of any court or governmental agency;
(2b) to the extent attributable to any Transfer (voluntary or involuntary) by or on behalf of such Indemnitee of any Equipment Note, Commitment or interest therein, except Stockholder shall not be liable for reasonable out-of-pocket costs and expenses incurred as a result of any such Transfer requested in writing by Borrower or made or effected as required by or pursuant to the terms of the Operative Agreements or made or effected in connection with or pursuant to the exercise of remedies under any Operative Agreement;
(3) to the extent attributable to the gross negligence or willful misconduct of such Indemnitee or any “Related Indemnitee” (as defined at the end of this Section 9.1(b)) (other than gross negligence or willful misconduct imputed to such Person solely by reason of its interest in the Aircraft or being party to any Operative Agreement);
(4) to the extent attributable to the incorrectness or breach inaccuracy of any representation or warranty of such Indemnitee or made by any Related Indemniteeother Person in connection with the Proposed Sale, contained in or made pursuant to any Operative Agreement;
other than the Company (5) except to the extent attributable that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the failure Company as well as breach by such Indemnitee or any Related Indemnitee to perform or observe any express agreement, covenant, or condition on its part to be performed or observed in any Operative Agreement;
(6) to the extent attributable to the offer or sale by such Indemnitee or any Related Indemnitee stockholder of any interest in the Equipment Notes or its Commitment in violation of the registration requirements of the Securities Act or in violation of the registration requirements of any applicable state or foreign securities Laws (other than any thereof caused identical representations, warranties and covenants provided by acts or omissions of Borrowerall stockholders);
(7c) the liability for indemnification, if any, of such Stockholder in the Proposed Sale and for the inaccuracy of any representations and warranties made by the Company or its Stockholders in connection with such Proposed Sale, is several and not joint with any other Person (except to the extent attributable that funds may be paid out of an escrow established to Security Agentcover breach of representations, warranties and covenants of the Company as well as breach by any stockholder of any of identical representations, warranties and covenants provided by all stockholders), and subject to the provisions of the Charter related to the allocation of the escrow, is pro rata in proportion to, and does not exceed, the amount of consideration paid to such Stockholder in connection with such Proposed Sale;
(d) liability shall be limited to such Stockholder’s failure applicable share (determined based on the respective proceeds payable to distribute funds received and distributable by it each Stockholder in connection with such Proposed Sale in accordance with the Operative Agreementsprovisions of the Charter) of a negotiated aggregate indemnification amount that applies equally to all Stockholders but that in no event exceeds the amount of consideration otherwise payable to such Stockholder in connection with such Proposed Sale, except with respect to claims related to fraud by such Stockholder, the liability for which need not be limited as to such Stockholder;
(8) e) upon the consummation of the Proposed Sale (i) each holder of each class or series of the Company’s stock will receive the same form of consideration for their shares of such class or series as is received by other than during holders in respect of their shares of such same class or series of stock, (ii) each holder of a series of Preferred Stock will receive the existence same amount of an Event consideration per share of Defaultsuch series of Preferred Stock as is received by other holders in respect of their shares of such same series, (iii) each holder of Common Stock will receive the same amount of consideration per share of Common Stock as is received by other holders in respect of their shares of Common Stock, and (iv) unless a Preferred Majority (as defined in the Charter) elect to receive a lesser amount by written notice given to the extent attributable Company at least 5 days prior to the authorization or giving or withholding effective date of any future amendmentssuch Proposed Sale, supplements, waivers, or consents the aggregate consideration receivable by all holders of the Preferred Stock and Common Stock shall be allocated among the holders of Preferred Stock and Common Stock on the basis of the relative liquidation preferences to which the holders of each respective series of Preferred Stock and the holders of Common Stock are entitled in a deemed Liquidation Event (assuming for this purpose that the Proposed Sale is a deemed Liquidation Event) in accordance with respect to any Operative Agreement, other than any requested by Borrower or required by or made pursuant the Charter in effect immediately prior to the terms Proposed Sale; and
(f) subject to clause (e) above, requiring the same form of consideration to be available to the holders of any single class or series of capital stock, if any holders of any capital stock of the Operative Agreements (unless such requirement results from the actions of Company are given an Indemnitee not required by or made pursuant option as to the Operative Agreements);
(9) form and amount of consideration to the extent attributable to any amount which any Indemnitee expressly agrees to pay or such Indemnitee expressly agrees shall not be paid by or be reimbursed by Borrower;
(10) to the extent that it is an ordinary and usual operating or overhead expense;
(11) for any Lien attributable to such Indemnitee or any Related Indemnitee that Borrower is not obligated to discharge under the Operative Agreements;
(12) if another provision of an Operative Agreement specifies the extent of Borrower’s responsibility or obligation with respect to such Expense, to the extent arising from a cause other than Borrower’s failure to comply with such specified responsibility or obligation; or
(13) to the extent imposed on an Indemnitee received as a result of any non-exempt “prohibited transaction” under 406(a) the Proposed Sale, all holders of ERISA or Section 4975(c)(1) of such capital stock will be given the Code caused by such Indemnitee. For purposes of same option; provided, however, that nothing in this Section 9.1, 5.2(f) shall entitle any holder to receive any form of consideration that such holder would be ineligible to receive as a Person shall be considered a “Related Indemnitee” of an Indemnitee if that Person is an Affiliate or employer result of such Indemniteeholder’s failure to satisfy any condition, a director, officer, employee, agent, requirement or servant of such Indemnitee or any such Affiliatelimitation that is generally applicable to the Company’s stockholders.
Appears in 2 contracts
Sources: Stockholders Agreement (Quanterix Corp), Stockholders Agreement (Quanterix Corp)
Exceptions. Notwithstanding anything The indemnity provided for in Section 9.1(a), Borrower 7.01(a) ---------- shall not be required extend to indemnify, protect, defend or hold harmless any Indemnitee pursuant to Section 9.1(a) against any Expense of such Indemniteeany Indemnitee to the extent it:
(1i) for any Taxes or a loss of Tax Benefit, whether or not Borrower is required to indemnify therefor pursuant to Section 9.3;
(2) attributable to the extent attributable to any Transfer (voluntary willful misconduct or involuntary) by or on behalf gross negligence of such Indemnitee of any Equipment Note, Commitment or interest therein, except for reasonable out-of-pocket costs and expenses incurred as a result of any such Transfer requested in writing by Borrower or made or effected as required by or pursuant to the terms of the Operative Agreements or made or effected in connection with or pursuant to the exercise of remedies under any Operative Agreement;
(3) to the extent attributable to the gross negligence or willful misconduct of such Indemnitee or any “Related Indemnitee” (as defined at the end of this Section 9.1(b)) (other than gross negligence or willful misconduct imputed to such Person solely person by reason of its interest in the Aircraft or being party to any Operative Agreementtransaction documents);
(4ii) except to the extent fairly attributable to acts or events occurring prior thereto, is attributable to acts or events (other than the performance by Lessee of its obligations pursuant to the terms of the Operative Agreements) which occur after the earlier of (i) the return of possession of the Aircraft to the Lessor or its designee in accordance with the Lease and (ii) if the Lessee is not required to return the Aircraft to the Lessor, termination of the Lease and payment by the Lessee of all amounts then required to be paid by the Lessee pursuant to the terms of the Operative Agreements; provided -------- that if the Lease has been terminated pursuant to Section 17 thereof, the indemnity provided in Section 7.01(a) hereof shall survive for so long as Lessor or the Indenture Trustee shall be exercising remedies under such Section 17), and provided further that nothing in this -------- ------- clause (ii) shall be deemed to exclude or limit any claim that any Indemnitee may have under Applicable Law by reason of an Event of Default or for damages from Lessee for breach of Lessee's covenants contained in the Lessee Documents or to release Lessee from any of its obligations under the Lessee Documents that expressly provide for performance after termination of the Term;
(iii) other than as expressly provided herein or in the other Operative Agreements, is a Tax or loss of a Tax benefit, whether or not the Lessee is required to indemnify therefor pursuant to Article 6 hereof or pursuant to the Tax Indemnity Agreement;
(iv) is a cost or expense expressly required to be paid by such Indemnitee or its permitted transferees (and not by the Lessee) pursuant to this Agreement or any other Operative Agreement and for which the Lessee is not otherwise obligated to reimburse such Indemnitee, directly or indirectly pursuant to the terms of this Agreement or such other Operative Agreement;
(v) is attributable to the incorrectness or breach by such Indemnitee of its representations or warranties, under any of the Operative Agreements except to the extent such incorrectness or breach was caused by a breach by Lessee of any representation or warranty or by any failure of such Indemnitee or Lessee to perform any Related Indemnitee, contained in or made pursuant to any obligation under an Operative Agreement;
(5vi) to the extent is attributable to the failure by such Indemnitee or any Related Indemnitee to perform any of its obligations under any of the Operative Agreements except to the extent such failure was caused by a breach by Lessee of any representation or observe warranty or by any express agreement, covenant, or condition on its part failure of Lessee to be performed or observed in perform any obligation under an Operative Agreement;
(6vii) is, in the case of the Owner Participant, Lessor's Liens attributable to the Owner Participant; in the case of the Owner Trustee, Lessor's Liens to the extent attributable to the Owner Trustee; in the case of Trust Company, Lessor's Liens to the extent attributable to Trust Company; and in the case of the Indenture Trustee, Indenture Trustee's Liens;
(viii) is, in the case of the Owner Participant or the Owner Trustee, attributable to the offer or sale by such Indemnitee or any Related Indemnitee of any interest in the Equipment Notes Aircraft, the Lessor's Estate or its Commitment the Trust Agreement or any similar interest (including an offer or sale resulting from bankruptcy or other proceedings for the relief of debtors in violation which such Indemnitee is the debtor), unless in each case such offer or sale shall occur (a) pursuant to the exercise of remedies under Section 17 of the registration requirements Lease or (b) pursuant to Section 5(b), 7(b), 7(d), 7(e), 8, 12(b), 13(b) or 14 of the Securities Act Lease or (c) in violation of the registration requirements of connection with any applicable state or foreign securities Laws (other than any thereof caused transfer required by acts or omissions of Borrower);
(7) to the extent attributable to Security Agent’s failure to distribute funds received and distributable by it in accordance with the Operative Agreements;
(8) other than during ix) in the existence of an Event of Default, to the extent attributable to the authorization or giving or withholding of any future amendments, supplements, waivers, or consents with respect to any Operative Agreement, other than any requested by Borrower or required by or made pursuant to the terms case of the Operative Agreements (unless such requirement results from the actions of an Indemnitee not required by or made pursuant to the Operative Agreements);
(9) to the extent attributable to any amount which any Indemnitee expressly agrees to pay or such Indemnitee expressly agrees shall not be paid by or be reimbursed by Borrower;
(10) to the extent that it Owner Participant, is an ordinary and usual operating Expense relating to, resulting from, arising out of or overhead expense;
(11) for any Lien attributable to such Indemnitee or any Related Indemnitee that Borrower is not obligated to discharge under the Operative Agreements;
(12) if another provision of an Operative Agreement specifies the extent of Borrower’s responsibility or obligation in connection with respect to such Expense, to the extent arising from a cause other than Borrower’s failure to comply with such specified responsibility or obligation; or
(13) to the extent imposed on an Indemnitee as a result of any non-exempt “"prohibited transaction” under 406(a) " within the meaning of Section 406 of ERISA or Section 4975(c)(1) of the Code caused by such Indemnitee. For purposes resulting from the direct or indirect use of this assets of any ERISA Plan to acquire or hold Owner Participant's interest in the Trust Estate or in the case of any transferee of the Owner Participant referred to in Section 9.15.01(c), a Person shall be considered a “Related Indemnitee” to purchase the Beneficial Interest pursuant to Section 5.01(c);
(x) except during the continuation of an Indemnitee if that Person Event of Default, is an Affiliate or employer attributable to any amendment to any of such Indemnitee, a director, officer, employee, agentthe Operative Agreements which is not requested, or servant consented to, by the Lessee or is not required or made pursuant to the terms of any of the Operative Agreements or Pass- Through Documents;
(xi) is attributable to the exercise by any Indemnitee of any right to inspect the Aircraft except with respect to any such inspection conducted while an Event of Default is continuing; and
(xii) constitutes the loss of future profits of such Indemnitee or any losses attributable to such AffiliateIndemnitee's overhead.
Appears in 1 contract
Exceptions. Notwithstanding anything contained in Section 9.1(a)8.1.1, Borrower Owner shall not be required to indemnify, protect, defend or and hold harmless any Indemnitee pursuant to Section 9.1(a) against 8.1.1 in respect of any Expense of such Indemnitee:
(1a) for For any Taxes or a loss of Tax Benefitbenefit, whether or not Borrower Owner is required to indemnify therefor pursuant to Section 9.38.3;
(2b) Except to the extent attributable to acts or events occurring prior thereto, acts or events (other than acts or events related to the performance by Owner of its obligations pursuant to the terms of the Operative Agreements) that occur after the Trust Indenture is required to be terminated in accordance with Section 11.01 of the Trust Indenture; provided, that nothing in this clause (b) shall be deemed to exclude or limit any claim that any Indemnitee may have under applicable Law by reason of an Event of Default or for damages from Owner for breach of Owner's covenants contained in the Operative Agreements or to release Owner from any of its obligations under the Operative Agreements that expressly provide for performance after termination of the Trust Indenture;
(c) To the extent attributable to any Transfer (voluntary or involuntary) by or on behalf of such Indemnitee of any Equipment Note, Commitment Note or interest therein, except for reasonable out-of-pocket costs and expenses incurred as a result of any such Transfer requested in writing by Borrower or made or effected as required by or pursuant to the terms of the Operative Agreements or made or effected in connection with or pursuant to the exercise of remedies under any Operative Agreement;
(3d) to [Intentionally Omitted]
(e) To the extent attributable to the gross negligence or willful misconduct of such Indemnitee or any “Related Indemnitee” related Indemnitee (as defined at the end of this Section 9.1(b)below) (other than gross negligence or willful misconduct imputed to such Person solely person by reason of its interest in the Aircraft or being party to any Operative Agreement);
(4f) to [Intentionally Omitted]
(g) To the extent attributable to the incorrectness or breach of any representation or warranty of such Indemnitee or any Related Indemnitee, related Indemnitee contained in or made pursuant to any Operative Agreement or any Pass Through Agreement;
(5h) to To the extent attributable to the failure by such Indemnitee or any Related related Indemnitee to perform or observe any express agreement, covenant, covenant or condition on its part to be performed or observed in any Operative Agreement or any Pass Through Agreement;
(6i) to To the extent attributable to the offer or sale by such Indemnitee or any Related related Indemnitee of any interest in the Aircraft, the Equipment Notes Notes, the Pass Through Certificates, or its Commitment any similar interest, in violation of the registration requirements of the Securities Act or in violation of the registration requirements of any other applicable federal, state or foreign securities Laws (other than any thereof caused by acts or omissions of BorrowerOwner);
(7i) With respect to any Indemnitee (other than Mortgagee), to the extent attributable to Security Agent’s the failure of the Mortgagee to distribute funds received and distributable by it in accordance with the Operative Trust Indenture, (ii) with respect to any Indemnitee (other than the Subordination Agent), to the extent attributable to the failure of the Subordination Agent to distribute funds received and distributable by it in accordance with the Intercreditor Agreement, (iii) with respect to any Indemnitee (other than the Pass Through Trustees), to the extent attributable to the failure of a Pass Through Trustee to distribute funds received and distributable by it in accordance with the Pass Through Trust Agreements;, (iv) with respect to any Indemnitee (other than the Escrow Agent), to the extent attributable to the failure of the Escrow Agent to pay funds received and payable by it in accordance with any Escrow Agreement, (v) with respect to any Indemnitee (other than the Paying Agent), to the extent attributable to the failure of the Paying Agent to distribute funds received and distributable by it in accordance with any Escrow Agreement, (vi) to the extent attributable to the failure of the Depositary to pay funds payable by it in accordance with any Deposit Agreement, (vii) with respect to Mortgagee, to the extent attributable to the negligence or willful misconduct of Mortgagee in the distribution of funds received and distributable by it in accordance with the Trust Indenture, (viii) with respect to the Subordination Agent, to the extent attributable to the negligence or willful misconduct of the Subordination Agent in the distribution of funds received and distributable by it in accordance with the Intercreditor Agreement, (ix) with respect to the Pass Through Trustees, to the extent attributable to the negligence or willful misconduct of a Pass Through Trustee in the distribution of funds received and distributable by it in accordance with the Pass Through Trust Agreements, (x) with respect to the Escrow Agent, to the extent attributable to the negligence or willful misconduct of the Escrow Agent in the payment of funds received and payable by it in accordance with any Escrow Agreement and (xi) with respect to the Paying Agent, to the extent attributable to the negligence or willful misconduct of the Paying Agent in the distribution of funds received and distributable by it in accordance with any Escrow Agreement.
(8) other k) Other than during the existence continuation of an Event of Default, to the extent attributable to the authorization or giving or withholding of any future amendments, supplements, waivers, waivers or consents with respect to any Operative Agreement, Agreement or Pass Through Agreement other than any such as have been requested by Borrower Owner or as are required by or made pursuant to the terms of the Operative Agreements or Pass Through Agreements (unless such requirement results from the actions of an Indemnitee not required by or made pursuant to the Operative Agreements or the Pass Through Agreements);
(9l) to To the extent attributable to any amount which any Indemnitee expressly agrees to pay or such Indemnitee expressly agrees shall not be paid by or be reimbursed by BorrowerOwner;
(10m) to To the extent that it is an ordinary and usual operating or overhead expense;
(11n) for [Intentionally Omitted]
(o) For any Lien attributable to such Indemnitee or any Related Indemnitee that Borrower is not obligated to discharge under the Operative Agreementsrelated Indemnitee;
(12p) if If another provision of an Operative Agreement or a Pass Through Agreement specifies the extent of Borrower’s Owner's responsibility or obligation with respect to such Expense, to the extent arising from a cause other than Borrower’s failure of Owner to comply with such specified responsibility or obligation; or
(13q) to To the extent imposed on incurred by or asserted against an Indemnitee as a result of any non-exempt “prohibited transaction” under 406(a) ”, within the meaning of Section 406 of ERISA or Section 4975(c)(1) of the Code caused by such IndemniteeCode. For purposes of this Section 9.18.1, a Person shall be considered a “Related Indemniteerelated” of Indemnitee with respect to an Indemnitee if that such Person is an Affiliate or employer of such Indemnitee, a director, officer, employee, agent, or servant of such Indemnitee or any such AffiliateAffiliate or a successor or permitted assignee of any of the foregoing.
Appears in 1 contract
Exceptions. Notwithstanding anything in Section 9.1(a)the forgoing, Borrower shall a Stockholder will not be required to indemnify, protect, defend or hold harmless comply with Section 3.2 above in connection with any Indemnitee pursuant to Section 9.1(aproposed Sale of the Company (the “Proposed Sale”) against any Expense of such Indemniteeunless:
(1a) for any Taxes representations and warranties to be made by such Stockholder in connection with the Proposed Sale are limited to representations and warranties related to authority, ownership and the ability to convey title to such Shares, including but not limited to representations and warranties that (i) the Stockholder holds all right, title and interest in and to the Shares such Stockholder purports to hold, free and clear of all liens and encumbrances, (ii) the obligations of the Stockholder in connection with the transaction have been duly authorized, if applicable, (iii) the documents to be entered into by the Stockholder have been duly executed by the Stockholder and delivered to the acquirer and are enforceable against the Stockholder in accordance with their respective terms and (iv) neither the execution and delivery of documents to be entered into in connection with the transaction, nor the performance of the Stockholder’s obligations thereunder, will cause a breach or a loss violation of Tax Benefitthe terms of any agreement, whether law or not Borrower is required to indemnify therefor pursuant to Section 9.3judgment, order or decree of any court or governmental agency;
(2b) to The Stockholder shall not be liable for the extent attributable to any Transfer (voluntary or involuntary) by or on behalf of such Indemnitee of any Equipment Note, Commitment or interest therein, except for reasonable out-of-pocket costs and expenses incurred as a result of any such Transfer requested in writing by Borrower or made or effected as required by or pursuant to the terms of the Operative Agreements or made or effected in connection with or pursuant to the exercise of remedies under any Operative Agreement;
(3) to the extent attributable to the gross negligence or willful misconduct of such Indemnitee or any “Related Indemnitee” (as defined at the end of this Section 9.1(b)) (other than gross negligence or willful misconduct imputed to such Person solely by reason of its interest in the Aircraft or being party to any Operative Agreement);
(4) to the extent attributable to the incorrectness or breach inaccuracy of any representation or warranty of such Indemnitee or made by any Related Indemniteeother Person in connection with the Proposed Sale, contained in or made pursuant to any Operative Agreementother than the Company;
(5c) to the extent attributable to liability for indemnification, if any, of such Stockholder in the failure Proposed Sale and for the inaccuracy of any representations and warranties made by the Company in connection with such Indemnitee or Proposed Sale, is several and not joint with any Related Indemnitee to perform or observe any express agreementother Person, covenant, or condition on its part to be performed or observed and is pro rata in any Operative Agreementaccordance with such Stockholder’s relative stock ownership of the Company;
(6d) liability shall be limited to the extent attributable amount of consideration actually paid to such Stockholder in connection with such Proposed Sale, except with respect to (i) representations and warranties of such Stockholder related to authority, ownership and the ability to convey title to such Shares, (ii) any covenants made by such Stockholder with respect to confidentiality or voting related to the offer Proposed Sale or sale (iii) claims related to fraud or willful breach by such Indemnitee or any Related Indemnitee of any interest in Stockholder, the Equipment Notes or its Commitment in violation of the registration requirements of the Securities Act or in violation of the registration requirements of any applicable state or foreign securities Laws (other than any thereof caused by acts or omissions of Borrower)liability for which need not be limited;
(7e) upon the consummation of the Proposed Sale, (i) each holder of each series of the Company’s Preferred Stock and each holder of Common Stock will receive the same form of consideration for their shares of Common and Preferred Stock, (ii) each holder of a series of Preferred Stock will receive the same amount of consideration per share of such series of Preferred Stock, (iii) each holder of Common Stock will receive the same amount of consideration per share of Common Stock, and (iv) unless the holders of at least [specify percentage]14 of the [Series A Preferred Stock] elect otherwise by written notice given to the extent attributable Company at least [__] days prior to Security Agent’s failure the effective date of any such Proposed Sale, the aggregate consideration receivable by all holders of the Preferred Stock and Common Stock shall be allocated among the holders of Preferred Stock and Common Stock on the basis of the relative liquidation preferences to distribute funds received which the holders of each respective series of Preferred Stock and distributable by it the holders of Common Stock are entitled in a Deemed Liquidation Event (assuming for this purpose that the Proposed Sale is a Deemed Liquidation Event) in accordance with the Operative Agreements;Company’s Certificate of Incorporation in effect immediately prior to the Proposed Sale; and
(8) other than during f) subject to clause (e) above, requiring the existence same form of consideration to be received by the holders of the Company’s Common and Preferred Stock, if any holders of any capital stock of the Company are given an Event of Default, option as to the extent attributable form and amount of consideration to the authorization or giving or withholding of any future amendments, supplements, waivers, or consents with respect to any Operative Agreement, other than any requested by Borrower or required by or made pursuant to the terms of the Operative Agreements (unless such requirement results from the actions of an Indemnitee not required by or made pursuant to the Operative Agreements);
(9) to the extent attributable to any amount which any Indemnitee expressly agrees to pay or such Indemnitee expressly agrees shall not be paid by or be reimbursed by Borrower;
(10) to the extent that it is an ordinary and usual operating or overhead expense;
(11) for any Lien attributable to such Indemnitee or any Related Indemnitee that Borrower is not obligated to discharge under the Operative Agreements;
(12) if another provision of an Operative Agreement specifies the extent of Borrower’s responsibility or obligation with respect to such Expense, to the extent arising from a cause other than Borrower’s failure to comply with such specified responsibility or obligation; or
(13) to the extent imposed on an Indemnitee received as a result of any non-exempt “prohibited transaction” under 406(a) of ERISA or Section 4975(c)(1) of the Code caused by such Indemnitee. For purposes of this Section 9.1Proposed Sale, a Person shall be considered a “Related Indemnitee” of an Indemnitee if that Person is an Affiliate or employer all holders of such Indemnitee, a director, officer, employee, agent, or servant of such Indemnitee or any such Affiliatecapital stock will be given the same option.
Appears in 1 contract
Sources: Voting Agreement
Exceptions. Notwithstanding anything in Section 9.1(a)the foregoing, Borrower shall an Investor will not be required to indemnify, protect, defend or hold harmless any Indemnitee pursuant to comply with the provisions of this Section 9.1(a2(c) against any Expense of such Indemniteeunless:
(1A) for any Taxes or a loss representations and warranties to be made by such Investor in connection with any transaction proposed to be subject to the Drag-Along Right are limited to representations and warranties related to organization, authority, ownership and the ability to convey title to such Shares (including any Share Equivalents), due execution and enforceability of Tax Benefittransaction documents, whether or not Borrower is required non contravention and no conflicts, governmental approvals, no brokers and no litigation relating to indemnify therefor pursuant to Section 9.3the transaction;
(2B) the Investor shall not be liable for the inaccuracy of any representation or warranty made by any other Person in connection with any transaction proposed to be subject to the Drag-Along Right, other than the Company (except to the extent attributable that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by any Transfer stockholder of any identical representations, warranties and covenants provided by all stockholders);
(voluntary C) the liability for indemnification, damages or involuntary) by or on behalf other remedies if any, of such Indemnitee Investor in any such transaction and for the inaccuracy of any Equipment Noterepresentations and warranties made by the Company or its stockholders in connection with such transaction, Commitment or interest thereinis several and not joint with any other Person (except to the extent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by any stockholder of any of identical representations, warranties and covenants provided by all stockholders), and is pro rata in proportion to, and does not exceed, the amount of consideration paid to such Investor in connection with such transaction (subject to and taking into account any liquidation preference provisions of the Certificate of Incorporation), except that the liability for reasonable out-of-pocket costs claims related to breaches of such Investor’s representations, warranties and expenses incurred covenants or fraud by such Investor shall only be borne by such Investor (except to the extent of any such escrow);
(D) subject to Section 2(c)(iv), the Investors will receive the same form of consideration in such Transfer and if any holders of any capital stock of the Company are given an option as to the form and amount of consideration to be received as a result of any such Transfer requested in writing by Borrower or made or effected as required by or pursuant transaction proposed to be subject to the terms Drag-Along Right, all holders of the Operative Agreements same class or made or effected series of capital stock will be given the same option; provided, however that nothing in connection with or pursuant this Section 2(c)(vii)(D) shall entitle any holder to the exercise receive any form of remedies under any Operative Agreement;
(3) consideration that such holder would be ineligible to the extent attributable to the gross negligence or willful misconduct receive as a result of such Indemnitee or any “Related Indemnitee” (as defined at the end of this Section 9.1(b)) (other than gross negligence or willful misconduct imputed to such Person solely by reason of its interest in the Aircraft or being party to any Operative Agreement);
(4) to the extent attributable to the incorrectness or breach of any representation or warranty of such Indemnitee or any Related Indemnitee, contained in or made pursuant to any Operative Agreement;
(5) to the extent attributable to the failure by such Indemnitee or any Related Indemnitee to perform or observe any express agreement, covenant, or condition on its part to be performed or observed in any Operative Agreement;
(6) to the extent attributable to the offer or sale by such Indemnitee or any Related Indemnitee of any interest in the Equipment Notes or its Commitment in violation of the registration requirements of the Securities Act or in violation of the registration requirements of any applicable state or foreign securities Laws (other than any thereof caused by acts or omissions of Borrower);
(7) to the extent attributable to Security Agentholder’s failure to distribute funds received and distributable by it satisfy any condition, requirement or limitation that is generally applicable to the Company’s stockholders; provided, further that an Investor that is an employee of the Company or its Subsidiaries may be given an option to receive securities in accordance with lieu of cash consideration in a “rollover transaction” without offering the Operative Agreements;same to other Investors as long as such securities are of an equivalent value at the closing of the Drag-Along Sale as the consideration paid to the other Investors; and
(8) other than during the existence of an Event of Default, E) notwithstanding anything to the extent attributable contrary in the foregoing, no Tiptree Investor or Warburg Investor shall be required to the authorization or giving or withholding of make any future amendments, supplements, waivers, or consents non-compete with respect to any Operative Agreement, other than any requested by Borrower or required by or made pursuant transaction proposed to be subject to the terms of the Operative Agreements (unless such requirement results from the actions of an Indemnitee not required by or made pursuant to the Operative Agreements);
(9) to the extent attributable to any amount which any Indemnitee expressly agrees to pay or such Indemnitee expressly agrees shall not be paid by or be reimbursed by Borrower;
(10) to the extent that it is an ordinary and usual operating or overhead expense;
(11) for any Lien attributable to such Indemnitee or any Related Indemnitee that Borrower is not obligated to discharge under the Operative Agreements;
(12) if another provision of an Operative Agreement specifies the extent of Borrower’s responsibility or obligation with respect to such Expense, to the extent arising from a cause other than Borrower’s failure to comply with such specified responsibility or obligation; or
(13) to the extent imposed on an Indemnitee as a result of any nonDrag-exempt “prohibited transaction” under 406(a) of ERISA or Section 4975(c)(1) of the Code caused by such Indemnitee. For purposes of this Section 9.1, a Person shall be considered a “Related Indemnitee” of an Indemnitee if that Person is an Affiliate or employer of such Indemnitee, a director, officer, employee, agent, or servant of such Indemnitee or any such AffiliateAlong Right.
Appears in 1 contract
Sources: Shareholder Agreement (Tiptree Inc.)
Exceptions. Notwithstanding anything in Section 9.1(a)Any other provision herein to the contrary notwithstanding, Borrower the Company shall not be required to indemnify, protect, defend or hold harmless any Indemnitee obligated pursuant to Section 9.1(a) against any Expense the terms of such Indemniteethis Agreement:
(1) for any Taxes or a loss of Tax Benefit, whether or not Borrower is required to indemnify therefor pursuant or advance expenses to Indemnitee with respect to proceedings or claims initiated or brought voluntarily by Indemnitee and not by way of defense, except with respect to proceedings brought to establish or enforce a right to indemnification under this Agreement or any other statute or law or otherwise as required under Section 9.3;317 of the California Corporations Code, but such indemnification or advancement of expenses may be provided by the Company in specific cases if the Board of Directors has approved the initiation or bringing of such suit; or
(2) to indemnify Indemnitee for any expenses incurred by the extent attributable Indemnitee with respect to any Transfer (voluntary proceeding instituted by Indemnitee to enforce or involuntary) by or on behalf interpret this Agreement, if a court of such Indemnitee of any Equipment Note, Commitment or interest therein, except for reasonable out-of-pocket costs and expenses incurred as a result of any such Transfer requested in writing by Borrower or made or effected as required by or pursuant to the terms competent jurisdiction determines that each of the Operative Agreements material assertions made by the Indemnitee in such proceeding was not made in good faith or made or effected in connection with or pursuant to the exercise of remedies under any Operative Agreement;was frivolous; or
(3) to indemnify Indemnitee for expenses or liabilities of any type whatsoever (including but not limited to judgments, fines, ERISA excise taxes or penalties, and amounts paid in settlement) which have been paid directly to Indemnitee by an insurance carrier under a policy of officers' and directors' liability insurance maintained by the extent attributable to the gross negligence or willful misconduct of such Indemnitee or any “Related Indemnitee” (as defined at the end of this Section 9.1(b)) (other than gross negligence or willful misconduct imputed to such Person solely by reason of its interest in the Aircraft or being party to any Operative Agreement);Company; or
(4) to indemnify Indemnitee for expenses for which Indemnitee is entitled to indemnity and/or payment by reason of having given notice of any circumstance which might give rise to a claim under any policy of insurance, the extent attributable terms of which have expired prior to the incorrectness or breach effective date of any representation or warranty of such Indemnitee or any Related Indemnitee, contained in or made pursuant to any Operative this Agreement;; or
(5) to indemnify Indemnitee for expenses for which Indemnitee is indemnified by the extent attributable Company otherwise than pursuant to the failure by such Indemnitee or any Related Indemnitee to perform or observe any express agreement, covenant, or condition on its part to be performed or observed in any Operative this Agreement;; or
(6) to the extent indemnify Indemnitee for expenses based on or attributable to the offer Indemnitee gaining in fact any personal profit or sale by such Indemnitee or any Related Indemnitee of any interest in the Equipment Notes or its Commitment in violation of the registration requirements of the Securities Act or in violation of the registration requirements of any applicable state or foreign securities Laws (other than any thereof caused by acts or omissions of Borrower);advantage to which he was not legally entitled; or
(7) to indemnify Indemnitee for expenses brought about or contributed to by the extent attributable to Security Agent’s failure to distribute funds received and distributable by it in accordance with dishonesty of Indemnitee seeking payment hereunder; however, notwithstanding the Operative Agreements;
(8) other than during the existence of an Event of Defaultforegoing, Indemnitee shall be protected under this Agreement to the fullest extent attributable permitted under law as to any claims on which suit may be brought against him or her by reasons of any alleged dishonesty on his or her part, unless a judgment or other final adjudication thereof adverse to Indemnitee shall establish that Indemnitee committed (i) acts of active and deliberate dishonesty (ii) with actual dishonest purpose and intent, which acts were material to the authorization or giving or withholding cause of any future amendments, supplements, waivers, or consents with respect to any Operative Agreement, other than any requested by Borrower or required by or made pursuant to the terms of the Operative Agreements (unless such requirement results from the actions of an Indemnitee not required by or made pursuant to the Operative Agreements);
(9) to the extent attributable to any amount which any Indemnitee expressly agrees to pay or such Indemnitee expressly agrees shall not be paid by or be reimbursed by Borrower;
(10) to the extent that it is an ordinary and usual operating or overhead expense;
(11) for any Lien attributable to such Indemnitee or any Related Indemnitee that Borrower is not obligated to discharge under the Operative Agreements;
(12) if another provision of an Operative Agreement specifies the extent of Borrower’s responsibility or obligation with respect to such Expense, to the extent arising from a cause other than Borrower’s failure to comply with such specified responsibility or obligationaction so adjudicated; or
(13) 8) to indemnify Indemnitee for expenses and the extent imposed on an payment of profits arisings from the purchase and sale by Indemnitee as a result of any non-exempt “prohibited transaction” under 406(a) securities in violation of ERISA or Section 4975(c)(116(b) of the Code caused by such Indemnitee. For purposes Securities Exchange Act of this Section 9.11934, a Person shall be considered a “Related Indemnitee” of an Indemnitee if that Person is an Affiliate or employer of such Indemnitee, a director, officer, employee, agentas amended, or servant of such Indemnitee or any such Affiliatesimilar successor statute.
Appears in 1 contract
Exceptions. Notwithstanding anything The indemnity provided for in Section 9.1(a), Borrower 7.01(a) shall ---------- not be required extend to indemnify, protect, defend or hold harmless any Indemnitee pursuant to Section 9.1(a) against any Expense of such Indemniteeto the extent it:
(1i) for any Taxes or a loss of Tax Benefit, whether or not Borrower is required to indemnify therefor pursuant to Section 9.3;
(2) to the extent attributable to any Transfer (voluntary or involuntary) by or on behalf of such Indemnitee of any Equipment Note, Commitment or interest therein, except for reasonable out-of-pocket costs and expenses incurred as a result of any such Transfer requested in writing by Borrower or made or effected as required by or pursuant to the terms of the Operative Agreements or made or effected in connection with or pursuant to the exercise of remedies under any Operative Agreement;
(3) to the extent attributable to the willful misconduct or gross negligence or willful misconduct of such any Indemnitee or any “Related Indemnitee” (as defined at the end of this Section 9.1(b)) (other than gross negligence or willful misconduct imputed to such Person solely person by reason of its interest in the Aircraft Engines or being party to any Operative AgreementPart or any transaction documents);
(4ii) is, except to the extent fairly attributable to the incorrectness acts or breach of any representation or warranty of such Indemnitee or any Related Indemniteeevents occurring prior thereto, contained in or made pursuant to any Operative Agreement;
(5) to the extent attributable to the failure by such Indemnitee acts or any Related Indemnitee to perform or observe any express agreement, covenant, or condition on its part to be performed or observed in any Operative Agreement;
(6) to the extent attributable to the offer or sale by such Indemnitee or any Related Indemnitee of any interest in the Equipment Notes or its Commitment in violation of the registration requirements of the Securities Act or in violation of the registration requirements of any applicable state or foreign securities Laws events (other than any thereof caused by acts or omissions of Borrower);
(7) to the extent attributable to Security Agent’s failure to distribute funds received and distributable by it in accordance with the Operative Agreements;
(8) other than during the existence of an Event of Default, to the extent attributable to the authorization or giving or withholding of any future amendments, supplements, waivers, or consents with respect to any Operative Agreement, other than any requested performance by Borrower or required by or made of its obligations pursuant to the terms of the Operative Agreements (unless such requirement results from Agreements) which occur after full repayment of the actions of an Indemnitee not required Loan by or made pursuant to the Operative Agreements);
(9) to the extent attributable to any amount which any Indemnitee expressly agrees to pay or such Indemnitee expressly agrees shall not be paid by or be reimbursed by Borrower;
(10iii) to is, other than as expressly provided herein or in the extent that it is an ordinary and usual operating other Operative Agreements, a Tax or overhead expenseloss of a Tax benefit;
(11iv) for any Lien attributable is a cost or expense expressly required to such be paid by an Indemnitee or its permitted transferees (and not by the Borrower) pursuant to this Agreement or any Related Indemnitee that other Operative Agreement and for which the Borrower is not otherwise obligated to discharge reimburse an Indemnitee pursuant to the terms of this Agreement or such other Operative Agreement;
(v) is attributable to the incorrectness or breach by an Indemnitee of its representations or warranties, under any of the Operative Agreements;
(12vi) if another provision is attributable to the failure by an Indemnitee to perform any of an its obligations under any of the Operative Agreement specifies the extent of Borrower’s responsibility or obligation with respect to such Expense, Agreements except to the extent arising from such failure was caused by a cause other than Borrower’s breach by Borrower of any representation or warranty or by any failure of Borrower to comply with such specified responsibility or obligation; orperform any obligation under an Operative Agreement;
(13vii) is attributable to the extent imposed on offer or sale of any interest in the Aircraft or the Loan or any similar interest (including an offer or sale resulting from bankruptcy or other proceedings for the relief of debtors in which an Indemnitee as is the debtor), unless in each case such offer or sale shall occur pursuant to the exercise of remedies hereunder and under any other Operative Agreement;
(viii) is an Expense relating to, resulting from, arising out of or in connection with a result of any non-exempt “"prohibited transaction” under 406(a) " within the meaning of Section 406 of ERISA or Section 4975(c)(1) of the Code caused by such Code; and
(ix) constitutes an Indemnitee. For purposes of this Section 9.1, a Person shall be considered a “Related Indemnitee” of an Indemnitee if that Person is an Affiliate or employer of such Indemnitee, a director, officer, employee, agent, or servant of such Indemnitee or any such Affiliate's overhead.
Appears in 1 contract
Exceptions. Notwithstanding anything contained in Section 9.1(a)8.1.1, Borrower Owner shall not be required to indemnify, protect, defend or and hold harmless any Indemnitee pursuant to Section 9.1(a) against 8.1.1 in respect of any Expense of such Indemnitee:
(1a) for For any Taxes or a loss of Tax Benefitbenefit, whether or not Borrower Owner is required to indemnify therefor pursuant to Section 9.38.3;
(2b) Except to the extent attributable to acts or events occurring prior thereto, acts or events (other than acts or events related to the performance by Owner of its obligations pursuant to the terms of the Operative Agreements) that occur after the Trust Indenture is required to be terminated in accordance with Section 11.01 of the Trust Indenture; provided, that nothing in this clause (b) shall be deemed to exclude or limit any claim that any Indemnitee may have under applicable Law by reason of an Event of Default or for damages from Owner for breach of Owner’s covenants contained in the Operative Agreements or to release Owner from any of its obligations under the Operative Agreements that expressly provide for performance after termination of the Trust Indenture;
(c) To the extent attributable to any Transfer (voluntary or involuntary) by or on behalf of such Indemnitee of any Equipment Note, Commitment Note or interest therein, except for reasonable out-of-pocket costs and expenses incurred as a result of any such Transfer requested in writing by Borrower or made or effected as required by or pursuant to the terms of the Operative Agreements or made or effected in connection with or pursuant to the exercise of remedies under any Operative Agreement;
(3d) to [Intentionally Omitted]
(e) To the extent attributable to the gross negligence or willful misconduct of such Indemnitee or any “Related Indemnitee” related Indemnitee (as defined at the end of this Section 9.1(b)below) (other than gross negligence or willful misconduct imputed to such Person solely person by reason of its interest in the Aircraft or being party to any Operative Agreement);
(4f) to [Intentionally Omitted]
(g) To the extent attributable to the incorrectness or breach of any representation or warranty of such Indemnitee or any Related Indemnitee, related Indemnitee contained in or made pursuant to any Operative Agreement or any Pass Through Agreement;
(5h) to To the extent attributable to the failure by such Indemnitee or any Related related Indemnitee to perform or observe any express agreement, covenant, covenant or condition on its part to be performed or observed in any Operative Agreement or any Pass Through Agreement;
(6i) to To the extent attributable to the offer or sale by such Indemnitee or any Related related Indemnitee of any interest in the Aircraft, the Equipment Notes Notes, the Pass Through Certificates, or its Commitment any similar interest, in violation of the registration requirements of the Securities Act or in violation of the registration requirements of any other applicable federal, state or foreign securities Laws (other than any thereof caused by acts or omissions of BorrowerOwner);
(7i) With respect to any Indemnitee (other than Mortgagee), to the extent attributable to Security Agent’s the failure of the Mortgagee to distribute funds received and distributable by it in accordance with the Operative Trust Indenture, (ii) with respect to any Indemnitee (other than the Subordination Agent), to the extent attributable to the failure of the Subordination Agent to distribute funds received and distributable by it in accordance with the Intercreditor Agreement, (iii) with respect to any Indemnitee (other than the Pass Through Trustees), to the extent attributable to the failure of a Pass Through Trustee to distribute funds received and distributable by it in accordance with the Pass Through Trust Agreements, (iv) with respect to Mortgagee, to the extent attributable to the negligence or willful misconduct of Mortgagee in the distribution of funds received and distributable by it in accordance with the Trust Indenture, (v) with respect to the Subordination Agent, to the extent attributable to the negligence or willful misconduct of the Subordination Agent in the distribution of funds received and distributable by it in accordance with the Intercreditor Agreement and (vi) with respect to the Pass Through Trustees, to the extent attributable to the negligence or willful misconduct of a Pass Through Trustee in the distribution of funds received and distributable by it in accordance with the Pass Through Trust Agreements;
(8) other k) Other than during the existence continuation of an Event of Default, to the extent attributable to the authorization or giving or withholding of any future amendments, supplements, waivers, waivers or consents with respect to any Operative Agreement, Agreement or Pass Through Agreement other than any such as have been requested by Borrower Owner or as are required by or made pursuant to the terms of the Operative Agreements or Pass Through Agreements (unless such requirement results from the actions of an Indemnitee not required by or made pursuant to the Operative Agreements or the Pass Through Agreements);
(9l) to To the extent attributable to any amount which any Indemnitee expressly agrees to pay or such Indemnitee expressly agrees shall not be paid by or be reimbursed by Borrower;
Owner; (10m) to To the extent that it is an ordinary and usual operating or overhead expense;
(11n) for [Intentionally Omitted]
(o) For any Lien attributable to such Indemnitee or any Related Indemnitee that Borrower is not obligated to discharge under the Operative Agreementsrelated Indemnitee;
(12p) if If another provision of an Operative Agreement or a Pass Through Agreement specifies the extent of BorrowerOwner’s responsibility or obligation with respect to such Expense, to the extent arising from a cause other than Borrower’s failure of Owner to comply with such specified responsibility or obligation; or
(13q) to To the extent imposed on incurred by or asserted against an Indemnitee as a result of any non-exempt “prohibited transaction” under 406(a) ”, within the meaning of Section 406 of ERISA or Section 4975(c)(1) of the Code caused by such IndemniteeCode. For purposes of this Section 9.18.1, a Person shall be considered a “Related Indemniteerelated” of Indemnitee with respect to an Indemnitee if that such Person is an Affiliate or employer of such Indemnitee, a director, officer, employee, agent, or servant of such Indemnitee or any such AffiliateAffiliate or a successor or permitted assignee of any of the foregoing.
Appears in 1 contract
Sources: Note Purchase Agreement (Sun Country Airlines Holdings, Inc.)
Exceptions. Notwithstanding anything contained in Section 9.1(a)8.1.1, Borrower Owner shall not be required to indemnify, protect, defend or and hold harmless any Indemnitee pursuant to Section 9.1(a) against 8.1.1 in respect of any Expense of such Indemnitee:
(1a) for For any Taxes or a loss of Tax Benefitbenefit, whether or not Borrower Owner is required to indemnify therefor pursuant to Section 9.38.3;
(2b) Except to the extent attributable to acts or events occurring prior thereto, acts or events (other than acts or events related to the performance by Owner of its obligations pursuant to the terms of the Operative Agreements) that occur after the Trust Indenture is required to be terminated in accordance with Section 11.01 of the Trust Indenture; provided, that nothing in this clause (b) shall be deemed to exclude or limit any claim that any Indemnitee may have under applicable Law by reason of an Event of Default or for damages from Owner for breach of Owner’s covenants contained in the Operative Agreements or to release Owner from any of its obligations under the Operative Agreements that expressly provide for performance after termination of the Trust Indenture;
(c) To the extent attributable to any Transfer (voluntary or involuntary) by or on behalf of such Indemnitee of any Equipment Note, Commitment Note or interest therein, except for reasonable out-of-pocket costs and expenses incurred as a result of any such Transfer requested in writing by Borrower or made or effected as required by or pursuant to the terms of the Operative Agreements or made or effected in connection with or pursuant to the exercise of remedies under any Operative Agreement;
(3d) to [Intentionally Omitted]
(e) To the extent attributable to the gross negligence or willful misconduct of such Indemnitee or any “Related Indemnitee” related Indemnitee (as defined at the end of this Section 9.1(b)below) (other than gross negligence or willful misconduct imputed to such Person solely person by reason of its interest in the Aircraft or being party to any Operative Agreement);
(4f) to [Intentionally Omitted]
(g) To the extent attributable to the incorrectness or breach of any representation or warranty of such Indemnitee or any Related Indemnitee, related Indemnitee contained in or made pursuant to any Operative Agreement or any Pass Through Agreement;
(5h) to To the extent attributable to the failure by such Indemnitee or any Related related Indemnitee to perform or observe any express agreement, covenant, covenant or condition on its part to be performed or observed in any Operative Agreement or any Pass Through Agreement;
(6i) to To the extent attributable to the offer or sale by such Indemnitee or any Related related Indemnitee of any interest in the Aircraft, the Equipment Notes Notes, the Pass Through Certificates, or its Commitment any similar interest, in violation of the registration requirements of the Securities Act or in violation of the registration requirements of any other applicable federal, state or foreign securities Laws (other than any thereof caused by acts or omissions of BorrowerOwner);
(7i) With respect to any Indemnitee (other than Mortgagee), to the extent attributable to Security Agent’s the failure of the Mortgagee to distribute funds received and distributable by it in accordance with the Operative AgreementsTrust Indenture, (ii) with respect to any Indemnitee (other than the Subordination Agent), to the extent attributable to the failure of the Subordination Agent to distribute funds received and distributable by it in accordance with the Intercreditor Agreement, (iii) with respect to any Indemnitee (other than the Pass Through Trustee), to the extent attributable to the failure of the Pass Through Trustee to distribute funds received and distributable by it in accordance with the Pass Through Trust Agreement, (iv) with respect to any Indemnitee (other than the Escrow Agent), to the extent attributable to the failure of the Escrow Agent to pay funds received and payable by it in accordance with the Escrow Agreement, (v) with respect to any Indemnitee (other than the Paying Agent), to the extent attributable to the failure of the Paying Agent to distribute funds received and distributable by it in accordance with the Escrow Agreement, (vi) to the extent attributable to the failure of the Depositary to pay funds payable by it in accordance with the Deposit Agreement, (vii) with respect to Mortgagee, to the extent attributable to the negligence or willful misconduct of Mortgagee in the distribution of funds received and distributable by it in accordance with the Trust Indenture, (viii) with respect to the Subordination Agent, to the extent attributable to the negligence or willful misconduct of the Subordination Agent in the distribution of funds received and distributable by it in accordance with the Intercreditor Agreement, (ix) with respect to the Pass Through Trustee, to the extent attributable to the negligence or willful misconduct of the Pass Through Trustee in the distribution of funds received and distributable by it in accordance with the Pass Through Trust Agreement, (x) with respect to the Escrow Agent, to the extent attributable to the negligence or willful misconduct of the Escrow Agent in the payment of funds received and payable by it in accordance with the Escrow Agreement and (xi) with respect to the Paying Agent, to the extent attributable to the negligence or willful misconduct of the Paying Agent in the distribution of funds received and distributable by it in accordance with the Escrow Agreement;
(8) other k) Other than during the existence continuation of an Event of Default, to the extent attributable to the authorization or giving or withholding of any future amendments, supplements, waivers, waivers or consents with respect to any Operative Agreement, Agreement or Pass Through Agreement other than any such as have been requested by Borrower Owner or as are required by or made pursuant to the terms of the Operative Agreements or Pass Through Agreements (unless such requirement results from the actions of an Indemnitee not required by or made pursuant to the Operative Agreements or the Pass Through Agreements);
(9l) to To the extent attributable to any amount which any Indemnitee expressly agrees to pay or such Indemnitee expressly agrees shall not be paid by or be reimbursed by BorrowerOwner;
(10m) to To the extent that it is an ordinary and usual operating or overhead expense;
(11n) for [Intentionally Omitted]
(o) For any Lien attributable to such Indemnitee or any Related Indemnitee that Borrower is not obligated to discharge under the Operative Agreementsrelated Indemnitee;
(12p) if If another provision of an Operative Agreement or a Pass Through Agreement specifies the extent of BorrowerOwner’s responsibility or obligation with respect to such Expense, to the extent arising from a cause other than Borrower’s failure of Owner to comply with such specified responsibility or obligation; or
(13q) to To the extent imposed on incurred by or asserted against an Indemnitee as a result of any non-exempt “"prohibited transaction” under 406(a) ", within the meaning of Section 406 of ERISA or Section 4975(c)(1) of the Code caused by such IndemniteeCode. For purposes of this Section 9.18.1, a Person shall be considered a “Related Indemnitee” of "related" Indemnitee with respect to an Indemnitee if that such Person is an Affiliate or employer of such Indemnitee, a director, officer, employee, agent, or servant of such Indemnitee or any such AffiliateAffiliate or a successor or permitted assignee of any of the foregoing.
Appears in 1 contract
Sources: Participation Agreement (Continental Airlines Inc /De/)
Exceptions. Notwithstanding anything contained in Section 9.1(a)8.1.1, Borrower Owner shall not be required to indemnify, protect, defend or and hold harmless any Indemnitee pursuant to Section 9.1(a) against 8.1.1 in respect of any Expense of such Indemnitee:
(1a) for For any Taxes or a loss of Tax Benefitbenefit, whether or not Borrower Owner is required to indemnify therefor pursuant to Section 9.38.3;
(2b) Except to the extent attributable to acts or events occurring prior thereto, acts or events (other than acts or events related to the performance by Owner of its obligations pursuant to the terms of the Operative Agreements) that occur after the Trust Indenture is required to be terminated in accordance with Section 11.01 of the Trust Indenture; provided, that nothing in this clause (b) shall be deemed to exclude or limit any claim that any Indemnitee may have under applicable Law by reason of an Event of Default or for damages from Owner for breach of Owner’s covenants contained in the Operative Agreements or to release Owner from any of its obligations under the Operative Agreements that expressly provide for performance after termination of the Trust Indenture;
(c) To the extent attributable to any Transfer (voluntary or involuntary) by or on behalf of such Indemnitee of any Equipment Note, Commitment Note or interest therein, except for reasonable out-of-pocket costs and expenses incurred as a result of any such Transfer requested in writing by Borrower or made or effected as required by or pursuant to the terms of the Operative Agreements or made or effected in connection with or pursuant to the exercise of remedies under any Operative Agreement;
(3d) to To the extent attributable to the gross negligence or willful misconduct of such Indemnitee or any “Related Indemnitee” related Indemnitee (as defined at the end of this Section 9.1(b)below) (other than gross negligence or willful misconduct imputed to such Person solely person by reason of its interest in the Aircraft or being party to any Operative Agreement);
(4e) to To the extent attributable to the incorrectness or breach of any representation or warranty of such Indemnitee or any Related Indemnitee, related Indemnitee contained in or made pursuant to any Operative Agreement or any Pass Through Agreement;
(5f) to To the extent attributable to the failure by such Indemnitee or any Related related Indemnitee to perform or observe any express agreement, covenant, covenant or condition on its part to be performed or observed in any Operative Agreement or any Pass Through Agreement;
(6g) to To the extent attributable to the offer or sale by such Indemnitee or any Related related Indemnitee of any interest in the Aircraft, the Equipment Notes Notes, the Pass Through Certificates, or its Commitment any similar interest, in violation of the registration requirements of the Securities Act or in violation of the registration requirements of any other applicable federal, state or foreign securities Laws (other than any thereof caused by acts or omissions of BorrowerOwner);
(7i) With respect to any Indemnitee (other than Indenture Trustee), to the extent attributable to Security Agent’s the failure of the Indenture Trustee to distribute funds received and distributable by it in accordance with the Operative Trust Indenture, (ii) with respect to any Indemnitee (other than the Subordination Agent), to the extent attributable to the failure of the Subordination Agent to distribute funds received and distributable by it in accordance with the Intercreditor Agreement, (iii) with respect to any Indemnitee (other than the Pass Through Trustees), to the extent attributable to the failure of a Pass Through Trustee to distribute funds received and distributable by it in accordance with the Pass Through Trust Agreements, (iv) with respect to any Indemnitee (other than the Escrow Agent), to the extent attributable to the failure of the Escrow Agent to pay funds received and payable by it in accordance with any Escrow Agreement, (v) with respect to any Indemnitee (other than the Paying Agent), to the extent attributable to the failure of the Paying Agent to distribute funds received and distributable by it in accordance with any Escrow Agreement, (vi) to the extent attributable to the failure of the Depositary to pay funds payable by it in accordance with any Deposit Agreement, (vii) with respect to Indenture Trustee, to the extent attributable to the negligence or willful misconduct of Indenture Trustee in the distribution of funds received and distributable by it in accordance with the Trust Indenture, (viii) with respect to the Subordination Agent, to the extent attributable to the negligence or willful misconduct of the Subordination Agent in the distribution of funds received and distributable by it in accordance with the Intercreditor Agreement, (ix) with respect to the Pass Through Trustees, to the extent attributable to the negligence or willful misconduct of a Pass Through Trustee in the distribution of funds received and distributable by it in accordance with the Pass Through Trust Agreements, (x) with respect to the Escrow Agent, to the extent attributable to the negligence or willful misconduct of the Escrow Agent in the payment of funds received and payable by it in accordance with any Escrow Agreement, (xi) with respect to the Paying Agent, to the extent attributable to the negligence or willful misconduct of the Paying Agent in the distribution of funds received and distributable by it in accordance with any Escrow Agreement, (xii) with respect to any Indemnitee (other than the Securities Intermediary), to the extent attributable to the failure of the Securities Intermediary to distribute funds received and distributable by it in accordance with the Trust Indenture and (xiii) with respect to Securities Intermediary, to the extent attributable to the negligence or willful misconduct of Securities Intermediary in the distribution of funds received and distributable by it in accordance with the Trust Indenture;
(8) other i) Other than during the existence continuation of an Event of Default, to the extent attributable to the authorization or giving or withholding of any future amendments, PARTICIPATION AGREEMENT (2012-2) 22 supplements, waivers, waivers or consents with respect to any Operative Agreement, Agreement or Pass Through Agreement other than any such as have been requested by Borrower Owner or as are required by or made pursuant to the terms of the Operative Agreements or Pass Through Agreements (unless such requirement results from the actions of an Indemnitee not required by or made pursuant to the Operative Agreements or the Pass Through Agreements);
(9j) to To the extent attributable to any amount which any Indemnitee expressly agrees to pay or such Indemnitee expressly agrees shall not be paid by or be reimbursed by BorrowerOwner;
(10k) to To the extent that it is an ordinary and usual operating or overhead expense;
(11l) for For any Lien attributable to such Indemnitee or any Related Indemnitee that Borrower is not obligated to discharge under the Operative Agreementsrelated Indemnitee;
(12m) if If another provision of an Operative Agreement or a Pass Through Agreement specifies the extent of BorrowerOwner’s responsibility or obligation with respect to such Expense, to the extent arising from a cause other than Borrower’s failure of Owner to comply with such specified responsibility or obligation; or
(13n) to To the extent imposed on incurred by or asserted against an Indemnitee as a result of any non-exempt “prohibited transaction” under 406(a) ”, within the meaning of Section 406 of ERISA or Section 4975(c)(1) of the Code caused by such IndemniteeCode. For purposes of this Section 9.18.1, a Person shall be considered a “Related Indemniteerelated” of Indemnitee with respect to an Indemnitee if that such Person is an Affiliate or employer of such Indemnitee, a director, officer, employee, agent, or servant of such Indemnitee or any such AffiliateAffiliate or a successor or permitted assignee of any of the foregoing.
Appears in 1 contract
Exceptions. Notwithstanding anything contained in Section 9.1(a)9.1.1, Borrower Lessee shall not be required to indemnify, protect, defend or and hold harmless any Indemnitee pursuant to Section 9.1(a) against 9.1.1 in respect of any Expense of such Indemnitee:
(1a) for For any Taxes or a loss of Tax Benefitbenefit, whether or not Borrower Lessee is required to indemnify therefor pursuant to Section 9.39.3 or the Tax Indemnity Agreement; provided, however, this Section 9.1.1(a) shall not apply to any taxes taken into account in making any payment on a net after tax basis;
(2b) Except to the extent attributable to acts or events occurring prior thereto, acts or events (other than acts or events related to the performance or failure to perform by Lessee of its obligations pursuant to the terms of the Lessee Operative Agreements) that occur after the earlier of: (i) with respect to the Airframe, any Engine or any Part, the return of possession (it being understood that the date of the placement of the Aircraft in storage as provided in Section 5 of the Lease constitutes the date of return of the Aircraft under the Lease) of such Airframe, Engine or Part pursuant to the terms of and in compliance with the Lease (other than pursuant to Section 15 thereof, in which case Lessee’s liability under this Section 9.1 shall survive for so long as Lessor or Mortgagee shall be entitled to exercise remedies under such Section 15) or (ii) the termination of the Term in accordance with the Lease;
(c) To the extent attributable to any Transfer (voluntary or involuntary) by or on behalf of such Indemnitee of any Equipment Note, Commitment Note or interest therein, except (i) for reasonable out-of-pocket costs and expenses incurred as a result of any such Transfer requested in writing by Borrower or made or effected as required by or pursuant to the terms of the Operative Agreements or made or effected in connection with or pursuant to the exercise of remedies under any Operative AgreementAgreement resulting from a Lease Event of Default and (ii) as otherwise required by the terms of Section 2.13 of the Trust Indenture;
(3d) to To the extent attributable to the gross negligence any Transfer (voluntary or willful misconduct involuntary) by or on behalf of such Indemnitee or any “Related Indemnitee” (as defined at the end of this Section 9.1(b)) (other than gross negligence or willful misconduct imputed to such Person solely by reason of its interest in the Aircraft or being party to any Operative Agreement);
(4) to the extent attributable to the incorrectness or breach of any representation or warranty of such Indemnitee or any Related Indemnitee, contained in or made pursuant to any Operative Agreement;
(5) to the extent attributable to the failure by such Indemnitee or any Related Indemnitee to perform or observe any express agreement, covenant, or condition on its part to be performed or observed in any Operative Agreement;
(6) to the extent attributable to the offer or sale by such Indemnitee or any Related Indemnitee Owner Participant of any interest in the Equipment Notes or its Commitment in violation of the registration requirements of the Securities Act or in violation of the registration requirements of any applicable state or foreign securities Laws (other than any thereof caused by acts or omissions of Borrower);
(7) to the extent attributable to Security Agent’s failure to distribute funds received and distributable by it in accordance with the Operative Agreements;
(8) other than during the existence of an Event of Default, to the extent attributable to the authorization or giving or withholding of any future amendments, supplements, waiversAircraft, or consents with respect to any Operative Agreement, other than any requested by Borrower or required by or made pursuant to the terms of the Operative Agreements (unless such requirement results from the actions of an Indemnitee not required by or made pursuant to the Operative Agreements);
(9) to the extent attributable to any amount which any Indemnitee expressly agrees to pay or such Indemnitee expressly agrees shall not be paid by or be reimbursed by Borrower;
(10) to the extent that it is an ordinary Trust Estate except for costs and usual operating or overhead expense;
(11) for any Lien attributable to such Indemnitee or any Related Indemnitee that Borrower is not obligated to discharge under the Operative Agreements;
(12) if another provision of an Operative Agreement specifies the extent of Borrower’s responsibility or obligation with respect to such Expense, to the extent arising from a cause other than Borrower’s failure to comply with such specified responsibility or obligation; or
(13) to the extent imposed on an Indemnitee expenses incurred as a result of any non-exempt “prohibited transaction” under 406(a) such Transfer, if such Transfer arises directly from a Lease Event of ERISA or Section 4975(c)(1) of the Code caused by such Indemnitee. For purposes of this Section 9.1, a Person Default that shall have occurred and be considered a “Related Indemnitee” of an Indemnitee if that Person is an Affiliate or employer of such Indemnitee, a director, officer, employee, agent, or servant of such Indemnitee or any such Affiliate.continuing;
Appears in 1 contract
Sources: Participation Agreement (Continental Airlines Inc /De/)
Exceptions. Notwithstanding anything the foregoing, no Stockholder or Executive will be required to comply with Section 8(b) above in Section 9.1(a)connection with any proposed Sale of the Company (the “Proposed Sale”) unless:
(i) any representations and warranties to be made by such Stockholder or Executive in connection with the Proposed Sale are limited to representations and warranties related to authority, Borrower ownership and the ability to convey title to such Stockholder Shares, including but not limited to representations and warranties that (i) the Stockholder or Executive holds all right, title and interest in and to the Stockholder Shares such Stockholder or Executive purports to hold, free and clear of all liens and encumbrances, (ii) the obligations of the Stockholder or Executive in connection with the transaction have been duly authorized, if applicable, (iii) the documents to be entered into by the Stockholder or Executive have been duly executed by the Stockholder or Executive and delivered to the acquirer and are enforceable against the Stockholder or Executive in accordance with their respective terms and (iv) neither the execution and delivery of documents to be entered into in connection with the transaction, nor the performance of the Stockholder’s or Executive’s obligations thereunder, will cause a breach or violation of the terms of any agreement, law, regulation or judgment, order or decree of any court or governmental agency;
(ii) such Stockholder or Executive shall not be required to indemnify, protect, defend or hold harmless any Indemnitee pursuant to Section 9.1(a) against any Expense of such Indemnitee:
(1) liable for any Taxes or a loss of Tax Benefit, whether or not Borrower is required to indemnify therefor pursuant to Section 9.3;
(2) to the extent attributable to any Transfer (voluntary or involuntary) by or on behalf of such Indemnitee of any Equipment Note, Commitment or interest therein, except for reasonable out-of-pocket costs and expenses incurred as a result of any such Transfer requested in writing by Borrower or made or effected as required by or pursuant to the terms of the Operative Agreements or made or effected in connection with or pursuant to the exercise of remedies under any Operative Agreement;
(3) to the extent attributable to the gross negligence or willful misconduct of such Indemnitee or any “Related Indemnitee” (as defined at the end of this Section 9.1(b)) (other than gross negligence or willful misconduct imputed to such Person solely by reason of its interest in the Aircraft or being party to any Operative Agreement);
(4) to the extent attributable to the incorrectness or breach inaccuracy of any representation or warranty of such Indemnitee made by any other person or any Related Indemniteeentity in connection with the Proposed Sale, contained in or made pursuant to any Operative Agreement;
other than the Company (5) except to the extent attributable that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the failure Company as well as breach by such Indemnitee or any Related Indemnitee to perform or observe any express agreement, covenant, or condition on its part to be performed or observed in any Operative Agreement;
(6) to the extent attributable to the offer or sale by such Indemnitee or any Related Indemnitee stockholder of any interest in the Equipment Notes or its Commitment in violation of the registration requirements of the Securities Act or in violation of the registration requirements of any applicable state or foreign securities Laws (other than any thereof caused identical representations, warranties and covenants provided by acts or omissions of Borrowerall stockholders);
(7iii) the liability for indemnification, if any, of such Stockholder or Executive in the Proposed Sale and for the inaccuracy of any representations and warranties made by the Company or its Stockholders or Executives in connection with such Proposed Sale, is several and not joint with any other Person (except to the extent attributable that funds may be paid out of an escrow established to Security Agentcover breach of representations, warranties and covenants of the Company as well as breach by any stockholder of any of identical representations, warranties and covenants provided by all stockholders), and subject to the provisions of the Restated Certificate related to the allocation of the escrow, is pro rata in proportion to, and does not exceed, the amount of consideration paid to such Stockholder or Executive in connection with such Proposed Sale;
(iv) liability shall be limited to such Stockholder’s failure or Executive’s applicable share (determined based on the respective proceeds payable to distribute funds received and distributable by it each Stockholder or Executive in connection with such Proposed Sale in accordance with the Operative Agreementsprovisions of the Restated Certificate) of a negotiated aggregate indemnification amount that applies equally to all Stockholders and Executives but that in no event exceeds the amount of consideration otherwise actually paid to such Stockholder or Executive in connection with such Proposed Sale, except with respect to claims related to fraud by such Stockholder or Executive, the liability for which need not be limited as to such Stockholder or Executive;
(8) v) upon the consummation of the Proposed Sale, (i) each holder of each class or series of the Company’s stock will receive the same form of consideration for their shares of such class or series as is received by other than during holders in respect of their shares of such same class or series of stock, (ii) each holder of a series of Preferred Stock will receive the existence same amount of an consideration per share of such series of Preferred Stock as is received by other holders in respect of their shares of such same series, (iii) each holder of Common Stock will receive the same amount of consideration per share of Common Stock as is received by other holders in respect of their shares of Common Stock, and (iv) the aggregate consideration receivable by all holders of the Preferred Stock and Common Stock shall be allocated among the holders of Preferred Stock and Common Stock on the basis of the relative liquidation preferences to which the holders of each respective series of Preferred Stock and the holders of Common Stock are entitled in a Deemed Liquidation Event of Default, (assuming for this purpose that the Proposed Sale is a Deemed Liquidation Event) in accordance with the Restated Certificate in effect immediately prior to the extent attributable Proposed Sale; and
(vi) subject to clause (v) above, requiring the same form of consideration to be available to the authorization or giving or withholding holders of any future amendmentssingle class or series of capital stock, supplements, waivers, or consents with respect to if any Operative Agreement, other than holders of any requested by Borrower or required by or made pursuant capital stock of the Company are given an option as to the terms form and amount of the Operative Agreements (unless such requirement results from the actions of an Indemnitee not required by or made pursuant consideration to the Operative Agreements);
(9) to the extent attributable to any amount which any Indemnitee expressly agrees to pay or such Indemnitee expressly agrees shall not be paid by or be reimbursed by Borrower;
(10) to the extent that it is an ordinary and usual operating or overhead expense;
(11) for any Lien attributable to such Indemnitee or any Related Indemnitee that Borrower is not obligated to discharge under the Operative Agreements;
(12) if another provision of an Operative Agreement specifies the extent of Borrower’s responsibility or obligation with respect to such Expense, to the extent arising from a cause other than Borrower’s failure to comply with such specified responsibility or obligation; or
(13) to the extent imposed on an Indemnitee received as a result of any non-exempt “prohibited transaction” under 406(a) the Proposed Sale, all holders of ERISA or Section 4975(c)(1) of such capital stock will be given the Code caused by such Indemnitee. For purposes of same option; provided, however, that nothing in this Section 9.1, 8(c) shall entitle any holder to receive any form of consideration that such holder would be ineligible to receive as a Person shall be considered a “Related Indemnitee” of an Indemnitee if that Person is an Affiliate or employer result of such Indemniteeholder’s failure to satisfy any condition, a director, officer, employee, agent, requirement or servant of such Indemnitee or any such Affiliatelimitation that is generally applicable to the Company’s stockholders.
Appears in 1 contract
Exceptions. Notwithstanding anything The indemnity set forth in Section 9.1(a), Borrower 7(c)(i) shall not be required extend to indemnifyany Loss with respect to a particular Indemnified Party (A) to the extent that such Loss is caused by acts, protectomissions or events which occur after full and final compliance by Lessee with all the terms of the Operative Agreements, defend (B) to the extent such Loss is caused by acts, omissions or hold harmless events which occur following the earlier of: (I) acceptance of possession of the Airframe or any Indemnitee Engine or Part by Lessor or its designee in accordance with the terms of the Lease (other than (x) pursuant to Section 9.1(a15 thereof, in which case Lessee's liability under this Section 7(c) against any Expense shall survive for so long as Lessor shall be entitled to exercise remedies under such Section 15, or (y) in connection with the initial delivery of the Aircraft to the Owner Trustee), (II) the termination of the Term in accordance with Section 9 of the Lease, or (III) the transfer of title to the Aircraft to Lessee (or its designee) in accordance with Section 10.1.4 or Section 18.2 of the Lease, (C) to the extent that such Indemnitee:
(1) for any Taxes Loss is a Tax or a loss of Tax Benefittax benefits, whether or not Borrower Lessee is required to indemnify therefor pursuant to Section 9.3;
7(b) hereof, (2D) to the extent attributable to any Transfer (voluntary that such Loss is caused by the willful misconduct or involuntary) by or on behalf gross negligence of such Indemnitee of any Equipment Note, Commitment or interest therein, except for reasonable out-of-pocket costs and expenses incurred as a result of any such Transfer requested in writing by Borrower or made or effected as required by or pursuant to the terms of the Operative Agreements or made or effected in connection with or pursuant to the exercise of remedies under any Operative Agreement;
(3) to the extent attributable to the gross negligence or willful misconduct of such Indemnitee or any “Related Indemnitee” (as defined at the end of this Section 9.1(b)) Indemnified Party (other than willful misconduct or gross negligence or willful misconduct imputed to such Person Indemnified Party solely by reason of its interest in the Aircraft Aircraft) or being party any material misrepresentation by or violation or breach of any obligations of such Indemnified Party contained in the Operative Agreements then in force unless such misrepresentation, violation or breach is a result of Lessee's failure to comply with the terms of any Operative Agreement);
Agreement to which it is a party, or (4E) to the extent attributable to the incorrectness such Loss results from a sale, assignment or breach of any representation or warranty of such Indemnitee or any Related Indemnitee, contained in or made pursuant to any Operative Agreement;
(5) to the extent attributable to the failure transfer by such Indemnitee or any Related Indemnitee to perform or observe any express agreement, covenant, or condition on Indemnified Party of its part to be performed or observed in any Operative Agreement;
(6) to the extent attributable to the offer or sale by such Indemnitee or any Related Indemnitee of any interest PARTICIPATION AGREEMENT [N396SW] -26- 32 in the Equipment Notes Aircraft, the Certificates or its Commitment in violation of the registration requirements of the Securities Act or in violation of the registration requirements of any applicable state or foreign securities Laws transactions contemplated hereby (other than any thereof caused by acts or omissions of Borrower);
(71) to the extent attributable to Security Agent’s failure to distribute funds received and distributable by it in accordance with the Operative Agreements;
(8) other than during the existence of an Event of Default, to the extent attributable to the authorization or giving or withholding of any future amendments, supplements, waivers, or consents with respect to any Operative Agreement, other than any requested by Borrower or as required by or made pursuant to the terms of the Operative Agreements or (unless such requirement results from 2) during the actions continuance of an Indemnitee not required by a Lease Default (of the type described in Section 14.1 or made pursuant to 14.5 of the Operative Agreements);
(9Lease) to or a Lease Event of Default or the extent attributable to any amount which any Indemnitee expressly agrees to pay or such Indemnitee expressly agrees shall not be paid by or be reimbursed by Borrower;
(10) to the extent that it is an ordinary and usual operating or overhead expense;
(11) for any Lien attributable to such Indemnitee or any Related Indemnitee that Borrower is not obligated to discharge exercise of remedies under the Operative Agreements;
(12Lease). This Section 7(c) if another provision of an Operative Agreement specifies the extent of Borrower’s responsibility or obligation with respect to such Expense, to the extent arising from does not constitute a cause other than Borrower’s failure to comply with such specified responsibility or obligation; or
(13) to the extent imposed on an Indemnitee as a result of any non-exempt “prohibited transaction” under 406(a) of ERISA or Section 4975(c)(1) guarantee of the Code caused by such Indemnitee. For purposes useful life or residual value of this Section 9.1, the Aircraft or a Person shall guarantee that the Certificates will be considered a “Related Indemnitee” of an Indemnitee if that Person is an Affiliate or employer of such Indemnitee, a director, officer, employee, agent, or servant of such Indemnitee or any such Affiliatepaid.
Appears in 1 contract
Exceptions. Notwithstanding anything in Section 9.1(a)Any other provision herein to the contrary notwithstanding, Borrower the General Partner shall not be required to indemnify, protect, defend or hold harmless any Indemnitee pursuant to Section 9.1(a) against any Expense of such Indemnitee:
(1) for any Taxes or a loss of Tax Benefit, whether or not Borrower is required to indemnify therefor pursuant to Section 9.3;
(2) to the extent attributable to any Transfer (voluntary or involuntary) by or on behalf of such Indemnitee of any Equipment Note, Commitment or interest therein, except for reasonable out-of-pocket costs and expenses incurred as a result of any such Transfer requested in writing by Borrower or made or effected as required by or obligated pursuant to the terms of this Agreement to indemnify Indemnitees:
(a) against any Losses or Expenses, or advance Expenses to Indemnitees, with respect to Claims initiated or brought voluntarily by Indemnitees, and not by way of defense (including, without limitation, affirmative defenses and counterclaims), except (i) Claims to establish or enforce a right to indemnification, contribution or advancement with respect to an Indemnification Event, whether under this Agreement, any other agreement or insurance policy, the Operative Agreements General Partner’s Organizational Documents of any Covered Entity, the laws of the State of Delaware or otherwise, (ii) if MarkWest Energy GP, L.L.C.’s board of directors has approved specifically the initiation or bringing of such Claim. (iii) if such indemnification is expressly required to be made by law, or effected (iv) if such indemnification is provided by MarkWest Energy GP, L.L.C., in connection with or its sole discretion, pursuant to the exercise of remedies powers vested in MarkWest Energy GP, L.L.C. under any Operative Agreementthe Delaware Limited Liability Company Act;
(3b) to the extent attributable to the gross negligence against any Losses or willful misconduct of such Indemnitee or any “Related Indemnitee” (as defined at the end of this Section 9.1(b)) (other than gross negligence or willful misconduct imputed to such Person solely by reason of its interest in the Aircraft or being party to any Operative Agreement);
(4) to the extent attributable to the incorrectness or breach of any representation or warranty of such Indemnitee or any Related Indemnitee, contained in or made pursuant to any Operative Agreement;
(5) to the extent attributable to the failure by such Indemnitee or any Related Indemnitee to perform or observe any express agreement, covenantExpenses, or condition on its part advance Expenses to be performed or observed in any Operative Agreement;
(6) to the extent attributable to the offer or sale by such Indemnitee or any Related Indemnitee of any interest in the Equipment Notes or its Commitment in violation of the registration requirements of the Securities Act or in violation of the registration requirements of any applicable state or foreign securities Laws (other than any thereof caused by acts or omissions of Borrower);
(7) to the extent attributable to Security Agent’s failure to distribute funds received and distributable by it in accordance with the Operative Agreements;
(8) other than during the existence of an Event of DefaultIndemnitees, to the extent attributable to the authorization or giving or withholding of any future amendments, supplements, waivers, or consents with respect to any Operative proceeding instituted by Indemnitees to enforce or interpret this Agreement, other than any requested if a court of competent jurisdiction determines that the material assertions made by Borrower Indemnitees in such proceeding were not made in good faith or required by or made pursuant to the terms of the Operative Agreements (unless such requirement results from the actions of an Indemnitee not required by or made pursuant to the Operative Agreements)were frivolous;
(9c) for any amounts paid in settlement of a proceeding unless the General Partner consents to the extent attributable to any amount such settlement, which any Indemnitee expressly agrees to pay or such Indemnitee expressly agrees consent shall not be paid by or be reimbursed by Borrowerunreasonably withheld;
(10d) against any Losses or Expenses, or advance Expenses to the extent that it is an ordinary and usual operating or overhead expense;
(11) for any Lien attributable to such Indemnitee or any Related Indemnitee that Borrower is not obligated to discharge under the Operative Agreements;
(12) if another provision of an Operative Agreement specifies the extent of Borrower’s responsibility or obligation Indemnitees, with respect to such ExpenseClaims arising (i) with respect to an accounting of profits made from the purchase and sale (or sale and purchase) by Indemnitees of securities of the General Partner within the meaning of Section 16(b) of the Exchange Act or (ii) pursuant to Sections 304 or 306 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002, to the extent arising from a cause other than Borrower’s failure to comply with such specified responsibility as amended, or obligationany rule or regulation promulgated pursuant thereto; or
(13e) if, and to the extent imposed on an Indemnitee as extent, that a result court of any non-exempt “prohibited transaction” under 406(a) of ERISA or Section 4975(c)(1) of the Code caused by competent jurisdiction renders a final, unappealable decision that such Indemnitee. For purposes of this Section 9.1, a Person shall be considered a “Related Indemnitee” of an Indemnitee if that Person indemnification is an Affiliate or employer of such Indemnitee, a director, officer, employee, agent, or servant of such Indemnitee or any such Affiliatenot lawful.
Appears in 1 contract
Sources: Indemnification Agreement (Markwest Energy Partners L P)
Exceptions. Notwithstanding anything contained in Section 9.1(a)8.1.1, Borrower Owner shall not be required to indemnify, protect, defend or and hold harmless any Indemnitee pursuant to Section 9.1(a) against 8.1.1 in respect of any Expense of such Indemnitee:
(1a) for For any Taxes or a loss of Tax Benefitbenefit, whether or not Borrower Owner is required to indemnify therefor pursuant to Section 9.38.3;
(2b) Except to the extent attributable to acts or events occurring prior thereto, acts or events (other than acts or events related to the performance by Owner of its obligations pursuant to the terms of the Operative Agreements) that occur after the Trust Indenture is required to be terminated in accordance with Section 11.01 of the Trust Indenture; provided, that nothing in this clause (b) shall be deemed to exclude or limit any claim that any Indemnitee may have under applicable Law by reason of an Event of Default or for damages from Owner for breach of Owner’s covenants contained in the Operative Agreements or to release Owner from any of its obligations under the Operative Agreements that expressly provide for performance after termination of the Trust Indenture;
(c) To the extent attributable to any Transfer (voluntary or involuntary) by or on behalf of such Indemnitee of any Equipment Note, Commitment Note or interest therein, except for reasonable out-of-pocket costs and expenses incurred as a result of any such Transfer requested in writing by Borrower or made or effected as required by or pursuant to the terms of the Operative Agreements or made or effected in connection with or pursuant to the exercise of remedies under any Operative Agreement;
(3d) to [Intentionally Omitted];
(e) To the extent attributable to the gross negligence or willful misconduct of such Indemnitee or any “Related Indemnitee” related Indemnitee (as defined at the end of this Section 9.1(b)below) (other than gross negligence or willful misconduct imputed to such Person solely person by reason of its interest in the Aircraft or being party to any Operative Agreement);
(4f) to [Intentionally Omitted];
(g) To the extent attributable to the incorrectness or breach of any representation or warranty of such Indemnitee or any Related Indemnitee, related Indemnitee contained in or made pursuant to any Operative Agreement or any Pass Through Agreement;
(5h) to To the extent attributable to the failure by such Indemnitee or any Related related Indemnitee to perform or observe any express agreement, covenant, covenant or condition on its part to be performed or observed in any Operative Agreement or any Pass Through Agreement;
(6i) to To the extent attributable to the offer or sale by such Indemnitee or any Related related Indemnitee of any interest in the Aircraft, the Equipment Notes Notes, the Pass Through Certificates, or its Commitment any similar interest, in violation of the registration requirements of the Securities Act or in violation of the registration requirements of any other applicable federal, state or foreign securities Laws (other than any thereof caused by acts or omissions of BorrowerOwner);
(7i) With respect to any Indemnitee (other than Mortgagee), to the extent attributable to Security Agent’s the failure of the Mortgagee to distribute funds received and distributable by it in accordance with the Operative AgreementsTrust Indenture, (ii) with respect to any Indemnitee (other than the Subordination Agent), to the extent attributable to the failure of the Subordination Agent to distribute funds received and distributable by it in accordance with the Intercreditor Agreement, (iii) with respect to any Indemnitee (other than the Pass Through Trustee), to the extent attributable to the failure of the Pass Through Trustee to distribute funds received and distributable by it in accordance with the Pass Through Trust Agreement, (iv) with respect to Mortgagee, to the extent attributable to the negligence or willful misconduct of Mortgagee in the distribution of funds received and distributable by it in accordance with the Trust Indenture, (v) with respect to the Subordination Agent, to the extent attributable to the negligence or willful misconduct of the Subordination Agent in the distribution of funds received and distributable by it in accordance with the Intercreditor Agreement, and (vi) with respect to the Pass Through Trustee, to the extent attributable to the negligence or willful misconduct of the Pass Through Trustee in the distribution of funds received and distributable by it in accordance with the Pass Through Trust Agreement,;
(8) other k) Other than during the existence continuation of an Event of Default, to the extent attributable to the authorization or giving or withholding of any future amendments, supplements, waivers, waivers or consents with respect to any Operative Agreement, Agreement or Pass Through Agreement other than any such as have been requested by Borrower Owner or as are required by or made pursuant to the terms of the Operative Agreements or Pass Through Agreements (unless such requirement results from the actions of an Indemnitee not required by or made pursuant to the Operative Agreements or the Pass Through Agreements);
(9l) to To the extent attributable to any amount which any Indemnitee expressly agrees to pay or such Indemnitee expressly agrees shall not be paid by or be reimbursed by BorrowerOwner;
(10m) to To the extent that it is an ordinary and usual operating or overhead expense;
(11n) for [Intentionally Omitted];
(o) For any Lien attributable to such Indemnitee or any Related Indemnitee that Borrower is not obligated to discharge under the Operative Agreementsrelated Indemnitee;
(12p) if If another provision of an Operative Agreement or a Pass Through Agreement specifies the extent of BorrowerOwner’s responsibility or obligation with respect to such Expense, to the extent arising from a cause other than Borrower’s failure of Owner to comply with such specified responsibility or obligation; or
(13q) to To the extent imposed on incurred by or asserted against an Indemnitee as a result of any non-exempt “prohibited transaction” under 406(a) ”, within the meaning of Section 406 of ERISA or Section 4975(c)(1) of the Code caused by such IndemniteeCode. For purposes of this Section 9.18.1, a Person shall be considered a “Related Indemniteerelated” of Indemnitee with respect to an Indemnitee if that such Person is an Affiliate or employer of such Indemnitee, a director, officer, employee, agent, or servant of such Indemnitee or any such AffiliateAffiliate or a successor or permitted assignee of any of the foregoing.
Appears in 1 contract
Exceptions. Notwithstanding anything contained in Section 9.1(athe foregoing clause (a), Borrower the Grantor shall not be required to indemnify, protect, defend or and hold harmless any Indemnitee pursuant to this Section 9.1(a) against 5.14 in respect of any Expense of such Indemnitee:
(1i) for For any Taxes or a loss of Tax Benefitbenefit, whether or not Borrower the Grantor is required to indemnify therefor pursuant to the Loan Documents provided, however, this Section 9.35.14(b)(i) shall not apply to any Taxes taken into account in making any payment on a net After-tax Basis;
(2ii) Except to the extent attributable to acts or events occurring prior thereto, acts or events (other than acts or events related to the performance or failure to perform by the Grantor of its obligations pursuant to the terms of the Loan Documents) that occur after the Mortgage Termination Date or, with respect to any Transfer Collateral, after the Administrative Agent is otherwise required to release the applicable Collateral from the Lien of the Mortgage pursuant to Section 5.01 of this Mortgage;
(iii) To the extent attributable to the offer, sale, assignment, transfer, participation or other disposition (whether voluntary or involuntary) by or on behalf of such Indemnitee (other than out of any Equipment Note, Commitment or interest therein, except for reasonable out-of-pocket costs and expenses incurred as a result of or in lieu of exercising remedies during the occurrence and continuance of, an Event of Default) of any Loan, all or any part of such Transfer requested Indemnitee’s interest in writing by Borrower the Loan Documents or made any interest in the Collateral or effected as required by or pursuant to the terms of the Operative Agreements or made or effected in connection with or pursuant to the exercise of remedies under any Operative Agreementsimilar security;
(3iv) to To the extent attributable to the gross negligence or willful misconduct of any Indemnitee or attributable to negligence by such Indemnitee or any “Related Indemnitee” (as defined at the end in exercising its right of this Section 9.1(b)) (other than gross negligence or willful misconduct imputed to such Person solely by reason of its interest in the Aircraft or being party to any Operative Agreement)inspection;
(4v) to To the extent attributable to the incorrectness or breach of any representation or warranty of such any Indemnitee or any Related Indemnitee, contained in or made pursuant to any Operative AgreementLoan Document or any agreement relating hereto or thereto;
(5vi) to To the extent attributable to the failure by such Indemnitee or any Related Indemnitee to perform or observe any express agreement, covenant, covenant or condition on its part to be performed or observed in any Operative AgreementLoan Document or any agreement relating hereto or thereto;
(6vii) to To the extent attributable to the offer or sale by such Indemnitee or any Related Indemnitee of any interest in the Equipment Notes any Collateral or its Commitment any Loan in violation of the registration requirements of the Securities Act or in violation of the registration requirements of any applicable federal, state or foreign securities Laws laws (other than any violation thereof caused by the acts or omissions of Borrowerthe Grantor);
(7viii) to To the extent attributable to Security Agent’s the failure of the Administrative Agent to distribute funds received and distributable by it in accordance with the Operative AgreementsMortgage;
(8) other than during the existence of an Event of Default, to ix) To the extent attributable to the authorization or giving or withholding of any future amendments, supplements, waivers, waivers or consents with respect to any Operative Agreement, Mortgage and Security Agreement 1005973744v2 Loan Document other than any such as have been requested by Borrower the Grantor or as are expressly required by or to be made pursuant to the terms of the Operative Agreements (unless such requirement results from the actions of an Indemnitee not required by or made pursuant to the Operative Agreements)Loan Documents;
(9x) to To the extent attributable to any amount which any Indemnitee expressly agrees in writing to pay or such Indemnitee expressly agrees in writing shall not be paid by or be reimbursed by Borrowerthe Grantor, or is otherwise payable or required to be borne by a Person other than the Grantor pursuant to any provision of any Loan Document;
(10xi) to the extent that it is an ordinary and usual operating or overhead expense;
(11) for any Lien attributable to such Indemnitee or any Related Indemnitee that Borrower is not obligated to discharge under the Operative Agreements;
(12) if If another provision of an Operative Agreement a Loan Document specifies the extent of Borrowerthe Grantor’s responsibility or obligation with respect to such Expense, to the extent arising from a cause other than Borrower’s failure of the Grantor to comply with such specified responsibility or obligation; orand
(13xii) to To the extent imposed on attributable to a Lender Lien or an Indemnitee as a result of any non-exempt “prohibited transaction” under 406(a) of ERISA or Section 4975(c)(1) of the Code caused by such Indemnitee. For purposes of this Section 9.1, a Person shall be considered a “Related Indemnitee” of an Indemnitee if that Person is an Affiliate or employer of such Indemnitee, a director, officer, employee, agent, or servant of such Indemnitee or any such AffiliateAdministrative Agent Lien.
Appears in 1 contract
Sources: Delayed Draw Term Loan Credit Agreement (Jetblue Airways Corp)
Exceptions. Notwithstanding anything in Section 9.1(a)Any other provision herein to the contrary notwithstanding, Borrower the General Partner and the Partnership shall not be required to indemnify, protect, defend or hold harmless any Indemnitee pursuant to Section 9.1(a) against any Expense of such Indemnitee:
(1) for any Taxes or a loss of Tax Benefit, whether or not Borrower is required to indemnify therefor pursuant to Section 9.3;
(2) to the extent attributable to any Transfer (voluntary or involuntary) by or on behalf of such Indemnitee of any Equipment Note, Commitment or interest therein, except for reasonable out-of-pocket costs and expenses incurred as a result of any such Transfer requested in writing by Borrower or made or effected as required by or obligated pursuant to the terms of this Agreement to indemnify Indemnitee:
(a) against any Losses or Expenses, or advance Expenses to Indemnitee, with respect to Claims initiated or brought voluntarily by Indemnitee, and not by way of defense (including, without limitation, affirmative defenses and counterclaims), except (i) Claims to establish or enforce a right to indemnification, contribution or advancement with respect to an Indemnification Event, whether under this Agreement, any other agreement or insurance policy, the Operative Agreements Organizational Documents of any Covered Entity, applicable law or otherwise, (ii) if the Board has approved specifically the initiation or bringing of such Claim. (iii) if such indemnification is expressly required to be made by law, or effected (iv) if such indemnification is provided by the General Partner or the Partnership, in connection with or the sole discretion of such entity, pursuant to the exercise of remedies powers vested in the General Partner under any Operative Agreementthe LLC Act or the Partnership under the LP Act, as applicable;
(3b) against any Losses or Expenses, or advance Expenses to the extent attributable to the gross negligence or willful misconduct of such Indemnitee or any “Related Indemnitee” (as defined at the end of this Section 9.1(b)) (other than gross negligence or willful misconduct imputed to such Person solely by reason of its interest in the Aircraft or being party to any Operative Agreement);
(4) to the extent attributable to the incorrectness or breach of any representation or warranty of such Indemnitee or any Related Indemnitee, contained in or made pursuant to any Operative Agreement;
(5) to the extent attributable to the failure by such Indemnitee or any Related Indemnitee to perform or observe any express agreement, covenant, or condition on its part to be performed or observed in any Operative Agreement;
(6) to the extent attributable to the offer or sale by such Indemnitee or any Related Indemnitee of any interest in the Equipment Notes or its Commitment in violation of the registration requirements of the Securities Act or in violation of the registration requirements of any applicable state or foreign securities Laws (other than any thereof caused by acts or omissions of Borrower);
(7) to the extent attributable to Security Agent’s failure to distribute funds received and distributable by it in accordance with the Operative Agreements;
(8) other than during the existence of an Event of Default, to the extent attributable to the authorization or giving or withholding of any future amendments, supplements, waivers, or consents with respect to any Operative proceeding instituted by Indemnitee to enforce or interpret this Agreement, other than any requested if a court of competent jurisdiction determines that the material assertions made by Borrower Indemnitee in such proceeding were not made in good faith or required by or made pursuant to the terms of the Operative Agreements (unless such requirement results from the actions of an Indemnitee not required by or made pursuant to the Operative Agreements)were frivolous;
(9c) for any amounts paid in settlement of a proceeding unless the General Partner or the Partnership, as applicable, consents to the extent attributable to any amount such settlement, which any Indemnitee expressly agrees to pay or such Indemnitee expressly agrees consent shall not be paid by or be reimbursed by Borrowerunreasonably withheld;
(10d) against any Losses or Expenses, or advance Expenses to the extent that it is an ordinary and usual operating or overhead expense;
(11) for any Lien attributable to such Indemnitee or any Related Indemnitee that Borrower is not obligated to discharge under the Operative Agreements;
(12) if another provision of an Operative Agreement specifies the extent of Borrower’s responsibility or obligation Indemnitee, with respect to such ExpenseClaims arising (i) with respect to an accounting of profits made from the purchase and sale (or sale and purchase) by Indemnitee of securities of the Partnership within the meaning of Section 16(b) of the Exchange Act or (ii) pursuant to Sections 304 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002, to the extent arising from a cause other than Borrower’s failure to comply with such specified responsibility as amended, or obligationany rule or regulation promulgated pursuant thereto; or
(13e) if, and to the extent imposed on an Indemnitee as extent, that a result court of any non-exempt “prohibited transaction” under 406(a) of ERISA or Section 4975(c)(1) of the Code caused by competent jurisdiction renders a final, unappealable decision that such Indemnitee. For purposes of this Section 9.1, a Person shall be considered a “Related Indemnitee” of an Indemnitee if that Person indemnification is an Affiliate or employer of such Indemnitee, a director, officer, employee, agent, or servant of such Indemnitee or any such Affiliatenot lawful.
Appears in 1 contract
Sources: Indemnification Agreement (Markwest Energy Partners L P)
Exceptions. Notwithstanding anything contained in Section 9.1(a9.16(a), Borrower shall not be required to indemnify, protect, defend or and hold harmless any Indemnitee pursuant to Section 9.1(a9.16(a) against in respect of any Expense of such Indemnitee:: Loan Agreement (2013) NYDOCS01/1266448.20
(1i) for For any Taxes or a loss of Tax Benefitbenefit, whether or not Borrower is required to indemnify therefor pursuant to the Operative Agreements; provided, however, this Section 9.39.16(b)(i) shall not apply to any Taxes taken into account in making any payment on a net After-tax Basis;
(2ii) Except to the extent attributable to acts or events occurring prior thereto, acts or events (other than acts or events related to the performance or failure to perform by Borrower of its obligations pursuant to the terms of the Operative Agreements) that occur after the Lender is required to direct the Security Trustee to release all remaining Collateral pursuant to Section 2.10 of this Agreement;
(iii) To the extent attributable to any Transfer (voluntary Assignment or involuntary) other transfer of the Loans or Notes by or on behalf of such Indemnitee of any Equipment Note, Commitment or interest thereina Lender, except for reasonable out-of-pocket costs and expenses incurred as a result of any such Transfer requested in writing by Borrower or made or effected as required by or pursuant to the terms of the Operative Agreements or made or effected in connection with or pursuant to the exercise of remedies under any Operative AgreementAgreements resulting from an Event of Default;
(3iv) to To the extent attributable to the gross negligence or willful misconduct of such Indemnitee or any “Related Indemnitee” related Indemnitee (as defined at the end of this Section 9.1(b)below) (other than gross negligence or willful misconduct imputed to such Person solely person by reason of its interest in the Aircraft or being party to any Operative AgreementAgreements);
(4v) to To the extent attributable to the incorrectness or breach of any representation or warranty of such Indemnitee or any Related Indemnitee, related Indemnitee contained in or made pursuant to any Operative AgreementAgreements;
(5vi) to To the extent attributable to the failure by such Indemnitee or any Related related Indemnitee to perform or observe any express agreement, covenant, covenant or condition on its part to be performed or observed in any Operative AgreementAgreements;
(6vii) to To the extent attributable to the offer or sale by such Indemnitee or any Related related Indemnitee of any interest in the Equipment Aircraft, the Loans or the Notes or its Commitment in violation of the registration requirements of the Securities Act or in violation of the registration requirements of any applicable federal, state or foreign securities Laws (other than any violation thereof caused by the acts or omissions of Borrower);
(7viii) to To the extent attributable to the failure of the Security Agent’s failure Trustee to distribute funds received and distributable by it in accordance with the Operative Agreements;
(8) other ix) Other than during the existence continuation of an Event of Default, to the extent attributable to the authorization or giving or withholding of any future amendments, supplements, waivers, waivers or consents with respect to any Operative Agreement, Agreements other than any such as have been requested by Borrower or Guarantor or as are required by or made pursuant to the terms of the Operative Agreements Agreements; Loan Agreement (unless such requirement results from the actions of an Indemnitee not required by or made pursuant to the Operative Agreements);2013) NYDOCS01/1266448.20
(9x) to To the extent attributable to any amount which any Indemnitee expressly agrees in writing to pay or such Indemnitee expressly agrees in writing shall not be paid by or be reimbursed by Borrower;
(10xi) to To the extent that it is an ordinary and usual operating or overhead expense;
(11xii) for any Lien attributable to such Indemnitee or any Related Indemnitee that Borrower is not obligated to discharge under the Operative Agreements;
(12) if If another provision of an Operative Agreement specifies the extent of Borrower’s or Guarantor’s responsibility or obligation with respect to such Expense, to the extent arising from a cause other than Borrower’s failure of Borrower or Guarantor to comply with such specified responsibility or obligation; or;
(13xiii) to To the extent imposed on it is an expense dealt with in Section 9.15;
(xiv) To the extent incurred by or asserted against an Indemnitee as a result of any non-exempt “prohibited transaction,” under 406(a) within the meaning of Section 406 of ERISA or Section 4975(c)(1) of the Code caused by Code, resulting from a breach of the representation of such IndemniteeIndemnitee or any related Indemnitee set forth in Section 6.7; and
(xv) To the extent attributable to a Lender Lien or a Security Trustee Lien. For purposes of this Section 9.19.16, a Person shall be considered a “Related Indemniteerelated” of Indemnitee with respect to an Indemnitee if that such Person is an Affiliate or employer of such Indemnitee, a director, officer, employee, agent, or servant of such Indemnitee or any such AffiliateAffiliate or a successor or permitted assignee of any of the foregoing.
Appears in 1 contract
Exceptions. Notwithstanding anything The indemnity provided for in Section 9.1(a), Borrower 9.01(a) shall not be required extend to indemnify, protect, defend or hold harmless any Indemnitee pursuant to Section 9.1(a) against any Expense of such Indemniteeany Indemnitee to the extent it:
(1i) would not have occurred but for the willful misconduct or gross negligence of such Indemnitee;
(ii) in respect of the Aircraft, is attributable to acts or events which occur after the Aircraft is no longer part of the Lessor's Estate or leased under the Lease or, if the Aircraft remains a part of the Lessor's Estate, after the expiration of the Term (other than pursuant to Article 17 of the Lease, in which case the indemnity provided in Section 9.01(a) hereof shall survive for so long as Lessor shall be entitled to exercise remedies under such Article 17), or to acts or events which occur after return of possession of the Aircraft by the Lessee in accordance with the provisions of the Lease but in any Taxes such case only to the extent not fairly attributable to circumstances or events occurring prior to expiration of the Term, including without limitation the Lessee's failure to fully discharge all of its obligations under the Lease or the other Operative Agreements or the Original Agreements;
(iii) except as provided in Section 9.02 hereof, is a loss of Tax BenefitTax, whether or not Borrower the Lessee is required to indemnify therefor pursuant to Section 9.3;
(2) to the extent attributable to any Transfer (voluntary or involuntary) by or on behalf of such Indemnitee of any Equipment Note, Commitment or interest therein, except for reasonable out-of-pocket costs and expenses incurred as a result of any such Transfer requested in writing by Borrower or made or effected as required by Article 8 hereof or pursuant to the terms of the Operative Agreements or made or effected in connection with or pursuant to the exercise of remedies under any Operative Tax Indemnity Agreement;
(3iv) is a cost or expense required to be paid by the Owner Participant or its permitted transferees (and not by the Lessee) pursuant to the express terms of this Agreement or any other Operative Agreement to which the Owner Participant is a party (other than the Owner Participant's obligations under Section 6.01 of the Trust Agreement) and for which the Lessee is not otherwise obligated to reimburse the Owner Participant, directly or indirectly;
(v) would not have been incurred by such Indemnitee if such Indemnitee had not been in breach of its representations or warranties, or had not defaulted in the observance and performance of the covenants, terms and provisions required to be observed and performed by it, in this Agreement, the Engine Warranty Assignment, the Lease, the Indenture, the Trust Agreement, the Original Agreements or any other Operative Agreement to which it is a party unless such breach or default shall be a result of the breach or default of any of the foregoing by the Lessee or another Indemnitee (it being understood that the Owner Participant shall not be responsible for any acts or omissions of the Initial Owner Participant);
(vi) [reserved];
(vii) is, in the case of the Owner Participant, Lessor's Liens to the extent attributable to the gross negligence or willful misconduct of such Indemnitee or any “Related Indemnitee” (as defined at the end of this Section 9.1(b)) (other than gross negligence or willful misconduct imputed to such Person solely by reason of its interest Owner Participant; in the Aircraft or being party to any Operative Agreement);
(4) case of SSB, Lessor's Liens to the extent attributable to SSB; and in the incorrectness or breach case of any representation or warranty of such Indemnitee or any Related Indemniteethe Indenture Trustee, contained in or made pursuant to any Operative AgreementIndenture Trustee's Liens;
(5viii) to is, in the extent attributable to case of the failure by such Indemnitee Owner Participant or any Related Indemnitee to perform or observe any express agreementthe Owner Trustee, covenant, or condition on its part to be performed or observed in any Operative Agreement;
(6) to the extent attributable to the offer or sale by such Indemnitee or any Related Indemnitee after the Delivery Date of any interest in the Equipment Notes Aircraft, the Lessor's Estate or its Commitment the Trust Agreement or any similar interest (including an offer or sale resulting from bankruptcy or other proceedings for the relief of debtors in violation which such Indemnitee is the debtor), unless in each case such offer or sale shall occur (w) in connection with a Refinancing, (x) as a result of the registration requirements exercise of the Securities Act or in violation of the registration requirements of any applicable state or foreign securities Laws (other than any thereof caused by acts or omissions of Borrower);
(7) to the extent attributable to Security Agent’s failure to distribute funds received and distributable by it remedies in accordance with the Operative Agreements;
Lease, (8) other than y) during the existence of a period when an Event of Default, to Loss has occurred or (z) in connection with the extent attributable to termination of the authorization Lease or giving action or withholding direction of any future amendments, supplements, waivers, or consents with respect to any Operative Agreement, other than any requested by Borrower or required by or made the Lessee pursuant to the terms Section 4.02 or 11.03 or Article 10 of the Operative Agreements (unless such requirement results from the actions of an Indemnitee not required by or made pursuant to the Operative Agreements);
(9) to the extent attributable to any amount which any Indemnitee expressly agrees to pay or such Indemnitee expressly agrees shall not be paid by or be reimbursed by Borrower;
(10) to the extent that it is an ordinary and usual operating or overhead expense;
(11) for any Lien attributable to such Indemnitee or any Related Indemnitee that Borrower is not obligated to discharge under the Operative Agreements;
(12) if another provision of an Operative Agreement specifies the extent of Borrower’s responsibility or obligation with respect to such Expense, to the extent arising from a cause other than Borrower’s failure to comply with such specified responsibility or obligationLease; or
(13ix) arises in the case of the Owner Participant or any person who is a "disqualified person", within the meaning of Section 4975(e)(2) of the Code, or a "party in interest", within the meaning of Section 3(14) of ERISA, by virtue of such person's relationship to the extent imposed on an Indemnitee Owner Participant, as a the result of any non-exempt “prohibited transaction” under 406(a) , within the meaning of Section 406 of ERISA or Section 4975(c)(1) of the Code caused by such Indemnitee. For purposes Code, occurring with respect to the purchase or holding of this Section 9.1, any Pass Through Certificate (or any funded participation therein) (i) over which purchase or holding the Owner Participant or any Affiliate thereof has discretion or control (other than in the capacity of a Person shall be considered a “Related Indemnitee” of an Indemnitee if that Person is an Affiliate directed trustee or employer of such Indemnitee, a director, officer, employee, agentcustodian), or servant (ii) by an employee benefit plan, within the meaning of such Indemnitee Section 3(3) of ERISA, or individual retirement account or plan subject to Section 4975 of the Code with respect to which the Owner Participant (or any Affiliate thereof) has the power, directly or indirectly, to appoint or terminate, or to negotiate the terms of the management agreement with, the person or persons having discretion or control (other than in the capacity of a directed trustee or custodian), over such Affiliatepurchase or holding.
Appears in 1 contract
Exceptions. 13 Notwithstanding anything in Section 9.1(a)the foregoing, Borrower shall a Stockholder will not be required to indemnifycomply with Subsection 3.2 above in connection with any proposed Sale of the Company (the “Proposed Sale”), protect, defend unless: 13 Drafter should assess and make determination as to whether any or hold harmless any Indemnitee pursuant all of the listed conditions are appropriate for the relevant transaction. The non-bracketed conditions are the ones typically considered minimal to Section 9.1(a) against any Expense of such Indemnitee:
(1) for any Taxes or a loss of Tax Benefit, whether or not Borrower ensure that no one is required to indemnify therefor pursuant to Section 9.3;
(2) to the extent attributable to any Transfer (voluntary or involuntary) by or on behalf of such Indemnitee of any Equipment Note, Commitment or interest therein, except for reasonable out-of-pocket costs and expenses incurred treated unfairly as a result of invocation of the drag-along.
(a) [any representations and warranties to be made by such Transfer requested Stockholder in writing connection with the Proposed Sale are limited to representations and warranties related to authority, ownership and the ability to convey title to such Shares, including, but not limited to, representations and warranties that (i) the Stockholder holds all right, title and interest in and to the Shares such Stockholder purports to hold, free and clear of all liens and encumbrances, (ii) the obligations of the Stockholder in connection with the transaction have been duly authorized, if applicable, (iii) the documents to be entered into by Borrower the Stockholder have been duly executed by the Stockholder and delivered to the acquirer and are enforceable against the Stockholder in accordance with their respective terms; and (iv) neither the execution and delivery of documents to be entered into in connection with the transaction, nor the performance of the Stockholder’s obligations thereunder, will cause a breach or made or effected as required by or pursuant to violation of the terms of the Operative Agreements any agreement, law or made judgment, order or effected in connection with decree of any court or pursuant to the exercise of remedies under any Operative Agreementgovernmental agency;
(3b) to the extent attributable to Stockholder shall not be liable for the gross negligence or willful misconduct of such Indemnitee or any “Related Indemnitee” (as defined at the end of this Section 9.1(b)) (other than gross negligence or willful misconduct imputed to such Person solely by reason of its interest in the Aircraft or being party to any Operative Agreement);
(4) to the extent attributable to the incorrectness or breach inaccuracy of any representation or warranty made by any other Person in connection with the Proposed Sale, other than the Company (except to the extent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by any stockholder of any of identical representations, warranties and covenants provided by all stockholders);]
(c) the liability for indemnification, if any, of such Indemnitee Stockholder in the Proposed Sale and for the inaccuracy of any representations and warranties made by the Company or its Stockholders in connection with such Proposed Sale, is several and not joint with any Related Indemniteeother Person (except to the extent that funds may be paid out of an escrow established to cover breach of representations, contained warranties and covenants of the Company as well as breach by any stockholder of any of identical representations, warranties and covenants provided by all stockholders), and [subject to the provisions of the Restated Certificate related to the allocation of the escrow,]14 is pro rata in or made pursuant proportion to, and does not exceed, the amount of consideration paid to any Operative Agreementsuch Stockholder in connection with such Proposed Sale;
(5d) [liability shall be limited to such Stockholder's applicable share (determined based on the extent attributable respective proceeds payable to the failure by each Stockholder in connection with such Indemnitee or any Related Indemnitee to perform or observe any express agreement, covenant, or condition on its part to be performed or observed in any Operative Agreement;
(6) to the extent attributable to the offer or sale by such Indemnitee or any Related Indemnitee of any interest in the Equipment Notes or its Commitment in violation of the registration requirements of the Securities Act or in violation of the registration requirements of any applicable state or foreign securities Laws (other than any thereof caused by acts or omissions of Borrower);
(7) to the extent attributable to Security Agent’s failure to distribute funds received and distributable by it Proposed Sale in accordance with the Operative Agreements;
(8) other than during provisions of the existence Restated Certificate) of an Event a negotiated aggregate indemnification amount that applies equally to all Stockholders but that in no event exceeds the amount of Defaultconsideration otherwise payable to such Stockholder in connection with such Proposed Sale, to the extent attributable to the authorization or giving or withholding of any future amendments, supplements, waivers, or consents except with respect to claims related to fraud by such Stockholder, the liability for which need not be limited as to such Stockholder;]
(e) upon the consummation of the Proposed Sale (i) each holder of each class or series of the Company’s stock will receive the same form of consideration for their shares of such class or series as is received by other holders in respect of their shares of such same class or series of stock, (ii) each holder of a series of Preferred Stock will receive the same amount of consideration per share of such series of Preferred Stock as is received by other holders in respect of their shares of such same series, (iii) each holder of Common Stock will receive the same amount of consideration per share of Common Stock as is received by other 14 Include the bracketed language if you use the Allocation of Escrow provision (Section 2.3.4) of the Model Charter. holders in respect of their shares of Common Stock, and (iv) unless the holders of at least [specify percentage] 15 of the [Series A Preferred Stock] elect to receive a lesser amount by written notice given to the Company at least [ ] days prior to the effective date of any Operative Agreementsuch Proposed Sale, other than any requested the aggregate consideration receivable by Borrower all holders of the Preferred Stock and Common Stock shall be allocated among the holders of Preferred Stock and Common Stock on the basis of the relative liquidation preferences to which the holders of each respective series of Preferred Stock and the holders of Common Stock are entitled in a Deemed Liquidation Event (assuming for this purpose that the Proposed Sale is a Deemed Liquidation Event) in accordance with the Company’s Certificate of Incorporation in effect immediately prior to the Proposed Sale; provided, however, that, notwithstanding the foregoing, if the consideration to be paid in exchange for the Key Holder Shares or required by or made Investor Shares, as applicable, pursuant to this Subsection 3.3(e) includes any securities and due receipt thereof by any Key Holder or Investor would require under applicable law (x) the terms registration or qualification of the Operative Agreements (unless such requirement results from the actions securities or of an Indemnitee not required by any person as a broker or made pursuant to the Operative Agreements);
(9) to the extent attributable to any amount which any Indemnitee expressly agrees to pay dealer or such Indemnitee expressly agrees shall not be paid by or be reimbursed by Borrower;
(10) to the extent that it is an ordinary and usual operating or overhead expense;
(11) for any Lien attributable to such Indemnitee or any Related Indemnitee that Borrower is not obligated to discharge under the Operative Agreements;
(12) if another provision of an Operative Agreement specifies the extent of Borrower’s responsibility or obligation agent with respect to such Expensesecurities; or (y) the provision to any Key Holder or Investor of any information other than such information as a prudent issuer would generally furnish in an offering made solely to “accredited investors” as defined in Regulation D promulgated under the Securities Act, the Company may cause to be paid to any such Key Holder or Investor in lieu thereof, against surrender of the Key Holder Shares or Investor Shares, as applicable, which would have otherwise been sold by such Key Holder or Investor, an amount in cash equal to the extent arising from a cause other than Borrower’s failure to comply with fair value (as determined in good faith by the Company) of the securities which such specified responsibility Key Holder or obligationInvestor would otherwise receive as of the date of the issuance of such securities in exchange for the Key Holder Shares or Investor Shares, as applicable; orand
(13f) [subject to clause (e) above, requiring the same form of consideration to be available to the extent imposed on holders of any single class or series of capital stock, if any holders of any capital stock of the Company are given an Indemnitee option as to the form and amount of consideration to be received as a result of any non-exempt “prohibited transaction” under 406(a) of ERISA or Section 4975(c)(1) of the Code caused by such Indemnitee. For purposes of this Section 9.1Proposed Sale, a Person shall be considered a “Related Indemnitee” of an Indemnitee if that Person is an Affiliate or employer all holders of such Indemniteecapital stock will be given the same option; provided, however, that nothing in this Subsection 3.3(f) shall entitle any holder to receive any form of consideration that such holder would be ineligible to receive as a director, officer, employee, agent, or servant result of such Indemnitee holder’s failure to satisfy any condition, requirement or any such Affiliate.limitation that is generally applicable to the Company’s stockholders.
Appears in 1 contract
Sources: Voting Agreement
Exceptions. Notwithstanding anything in Section 9.1(a)Any other provision herein to the contrary notwithstanding, Borrower the General Partner and the Partnership shall not be required to indemnify, protect, defend or hold harmless any Indemnitee pursuant to Section 9.1(a) against any Expense of such Indemnitee:
(1) for any Taxes or a loss of Tax Benefit, whether or not Borrower is required to indemnify therefor pursuant to Section 9.3;
(2) to the extent attributable to any Transfer (voluntary or involuntary) by or on behalf of such Indemnitee of any Equipment Note, Commitment or interest therein, except for reasonable out-of-pocket costs and expenses incurred as a result of any such Transfer requested in writing by Borrower or made or effected as required by or obligated pursuant to the terms of this Agreement to indemnify Indemnitees:
(a) against any Losses or Expenses, or advance Expenses to Indemnitees, with respect to Claims initiated or brought voluntarily by Indemnitees, and not by way of defense (including, without limitation, affirmative defenses and counterclaims), except (i) Claims to establish or enforce a right to indemnification, contribution or advancement with respect to an Indemnification Event, whether under this Agreement, any other agreement or insurance policy, the Operative Agreements Organizational Documents of any Covered Entity, applicable law or otherwise, (ii) if the Board has approved specifically the initiation or bringing of such Claim. (iii) if such indemnification is expressly required to be made by law, or effected (iv) if such indemnification is provided by MarkWest Energy GP, L.L.C., in connection with or its sole discretion, pursuant to the exercise of remedies powers vested in MarkWest Energy GP, L.L.C. under any Operative Agreementthe LLC Act or the LP Act;
(3b) to the extent attributable to the gross negligence against any Losses or willful misconduct of such Indemnitee or any “Related Indemnitee” (as defined at the end of this Section 9.1(b)) (other than gross negligence or willful misconduct imputed to such Person solely by reason of its interest in the Aircraft or being party to any Operative Agreement);
(4) to the extent attributable to the incorrectness or breach of any representation or warranty of such Indemnitee or any Related Indemnitee, contained in or made pursuant to any Operative Agreement;
(5) to the extent attributable to the failure by such Indemnitee or any Related Indemnitee to perform or observe any express agreement, covenantExpenses, or condition on its part advance Expenses to be performed or observed in any Operative Agreement;
(6) to the extent attributable to the offer or sale by such Indemnitee or any Related Indemnitee of any interest in the Equipment Notes or its Commitment in violation of the registration requirements of the Securities Act or in violation of the registration requirements of any applicable state or foreign securities Laws (other than any thereof caused by acts or omissions of Borrower);
(7) to the extent attributable to Security Agent’s failure to distribute funds received and distributable by it in accordance with the Operative Agreements;
(8) other than during the existence of an Event of DefaultIndemnitees, to the extent attributable to the authorization or giving or withholding of any future amendments, supplements, waivers, or consents with respect to any Operative proceeding instituted by Indemnitees to enforce or interpret this Agreement, other than any requested if a court of competent jurisdiction determines that the material assertions made by Borrower Indemnitees in such proceeding were not made in good faith or required by or made pursuant to the terms of the Operative Agreements (unless such requirement results from the actions of an Indemnitee not required by or made pursuant to the Operative Agreements)were frivolous;
(9c) for any amounts paid in settlement of a proceeding unless the General Partner consents to the extent attributable to any amount such settlement, which any Indemnitee expressly agrees to pay or such Indemnitee expressly agrees consent shall not be paid by or be reimbursed by Borrowerunreasonably withheld;
(10d) against any Losses or Expenses, or advance Expenses to the extent that it is an ordinary and usual operating or overhead expense;
(11) for any Lien attributable to such Indemnitee or any Related Indemnitee that Borrower is not obligated to discharge under the Operative Agreements;
(12) if another provision of an Operative Agreement specifies the extent of Borrower’s responsibility or obligation Indemnitees, with respect to such ExpenseClaims arising (i) with respect to an accounting of profits made from the purchase and sale (or sale and purchase) by Indemnitees of securities of the General Partner or the Partnership within the meaning of Section 16(b) of the Exchange Act or (ii) pursuant to Sections 304 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002, to the extent arising from a cause other than Borrower’s failure to comply with such specified responsibility as amended, or obligationany rule or regulation promulgated pursuant thereto; or
(13e) if, and to the extent imposed on an Indemnitee as extent, that a result court of any non-exempt “prohibited transaction” under 406(a) of ERISA or Section 4975(c)(1) of the Code caused by competent jurisdiction renders a final, unappealable decision that such Indemnitee. For purposes of this Section 9.1, a Person shall be considered a “Related Indemnitee” of an Indemnitee if that Person indemnification is an Affiliate or employer of such Indemnitee, a director, officer, employee, agent, or servant of such Indemnitee or any such Affiliatenot lawful.
Appears in 1 contract
Sources: Indemnification Agreement (Markwest Energy Partners L P)
Exceptions. Notwithstanding anything in Section 9.1(a)any other provision of this Agreement, Borrower the Company shall not be required to indemnify, protect, defend or hold harmless any Indemnitee pursuant to Section 9.1(a) against any Expense of such Indemnitee:
(1) for any Taxes or a loss of Tax Benefit, whether or not Borrower is required to indemnify therefor pursuant to Section 9.3;
(2) to the extent attributable to any Transfer (voluntary or involuntary) by or on behalf of such Indemnitee of any Equipment Note, Commitment or interest therein, except for reasonable out-of-pocket costs and expenses incurred as a result of any such Transfer requested in writing by Borrower or made or effected as required by or obligated pursuant to the terms of the Operative Agreements or made or effected in connection with or pursuant to the exercise of remedies under any Operative this Agreement;:
(3a) To indemnify or advance Expenses to Indemnitee with respect to Proceedings or Claims arising out of acts, omissions or transactions for which Indemnitee is prohibited from receiving indemnification under applicable law.
(b) To indemnify or advance Expenses to Indemnitee with respect to Proceedings or Claims initiated or brought voluntarily by Indemnitee and not by way of defense, counterclaim or crossclaim, except (i) with respect to actions or proceedings brought to establish or enforce a right to indemnification under this Agreement or any other agreement or insurance policy or under the extent attributable Charter Documents now or hereafter in effect relating to Proceedings or Claims for Indemnifiable Events, or (ii) in specific cases if the gross negligence Board of Directors of the Company has approved the initiation or willful misconduct bringing of such Indemnitee Proceeding or any “Related Indemnitee” (as defined at Claims by a majority vote of the end of this Section 9.1(b)) (other than gross negligence or willful misconduct imputed to such Person solely by reason of its interest in the Aircraft or being party to any Operative Agreement);Disinterested Directors.
(4c) to the extent attributable to the incorrectness or breach of To indemnify Indemnitee for any representation or warranty of such Expenses incurred by Indemnitee or any Related Indemnitee, contained in or made pursuant to any Operative Agreement;
(5) to the extent attributable to the failure by such Indemnitee or any Related Indemnitee to perform or observe any express agreement, covenant, or condition on its part to be performed or observed in any Operative Agreement;
(6) to the extent attributable to the offer or sale by such Indemnitee or any Related Indemnitee of any interest in the Equipment Notes or its Commitment in violation of the registration requirements of the Securities Act or in violation of the registration requirements of any applicable state or foreign securities Laws (other than any thereof caused by acts or omissions of Borrower);
(7) to the extent attributable to Security Agent’s failure to distribute funds received and distributable by it in accordance with the Operative Agreements;
(8) other than during the existence of an Event of Default, to the extent attributable to the authorization or giving or withholding of any future amendments, supplements, waivers, or consents with respect to any Operative action instituted (i) by Indemnitee to enforce or interpret this Agreement, other than any requested if a court having jurisdiction over such action determines that each of the material assertions made by Borrower Indemnitee as a basis for such action was not made in good faith or required was frivolous, or (ii) by or made pursuant to in the terms name of the Operative Agreements Company to enforce or interpret this Agreement, if a court having jurisdiction over such action determines that each of the material defenses asserted by Indemnitee in such action was made in bad faith or was frivolous.
(unless such requirement results d) To indemnify Indemnitee for Expenses, judgments, fines, penalties and the payment of profits arising from the actions purchase and sale by Indemnitee of an Indemnitee not required by securities in violation of Section 16(b) of the Securities Exchange Act of 1934, as amended, or made pursuant to the Operative Agreements);any similar successor statute.
(9e) To indemnify Indemnitee for Liabilities or Expenses arising from an administrative or civil enforcement action commenced by a federal banking agency to the extent attributable to any amount which any Indemnitee expressly agrees to pay prohibited by the laws or such Indemnitee expressly agrees shall not be paid by or be reimbursed by Borrower;
(10) to the extent that it is an ordinary and usual operating or overhead expense;
(11) for any Lien attributable to such Indemnitee or any Related Indemnitee that Borrower is not obligated to discharge under the Operative Agreements;
(12) if another provision of an Operative Agreement specifies the extent of Borrower’s responsibility or obligation with respect to such Expense, to the extent arising from a cause other than Borrower’s failure to comply with such specified responsibility or obligation; or
(13) to the extent imposed on an Indemnitee as a result of any non-exempt “prohibited transaction” under 406(a) of ERISA or Section 4975(c)(1) of the Code caused by such Indemnitee. For purposes of this Section 9.1, a Person shall be considered a “Related Indemnitee” of an Indemnitee if that Person is an Affiliate or employer regulations of such Indemnitee, a director, officer, employee, agent, or servant of such Indemnitee or any such Affiliateagency.
Appears in 1 contract
Exceptions. Notwithstanding anything in Section 9.1(a)to the contrary herein, Borrower the Company shall not be required to indemnify, protect, defend or hold harmless any Indemnitee pursuant to Section 9.1(a) against any Expense of such Indemnitee:
(1) for any Taxes or a loss of Tax Benefit, whether or not Borrower is required to indemnify therefor pursuant to Section 9.3;
(2) to the extent attributable to any Transfer (voluntary or involuntary) by or on behalf of such Indemnitee of any Equipment Note, Commitment or interest therein, except for reasonable out-of-pocket costs and expenses incurred as a result of any such Transfer requested in writing by Borrower or made or effected as required by or obligated pursuant to the terms of the Operative Agreements or made or effected in connection with or pursuant to the exercise of remedies under any Operative this Agreement;:
(3a) to the extent attributable to the gross negligence or willful misconduct of such Indemnitee or any “Related Indemnitee” (as defined at the end of this Claims Excluded Under Section 9.1(b)) (other than gross negligence or willful misconduct imputed to such Person solely by reason of its interest in the Aircraft or being party to any Operative Agreement);
(4) to the extent attributable to the incorrectness or breach of any representation or warranty of such Indemnitee or any Related Indemnitee, contained in or made pursuant to any Operative Agreement;
(5) to the extent attributable to the failure by such Indemnitee or any Related Indemnitee to perform or observe any express agreement, covenant, or condition on its part to be performed or observed in any Operative Agreement;
(6) to the extent attributable to the offer or sale by such Indemnitee or any Related Indemnitee of any interest in the Equipment Notes or its Commitment in violation 145 of the registration requirements of the Securities Act or in violation of the registration requirements of any applicable state or foreign securities Laws (other than any thereof caused by acts or omissions of Borrower);
(7) to the extent attributable to Security Agent’s failure to distribute funds received and distributable by it in accordance with the Operative Agreements;
(8) other than during the existence of an Event of Default, to the extent attributable to the authorization or giving or withholding of any future amendments, supplements, waivers, or consents Delaware General Corporation Law. To indemnify Indemnitee with respect to any Operative AgreementProceeding if (i) Indemnitee did not act in good faith or in a manner reasonably believed by such Indemnitee to be in, other than any requested by Borrower or required by or made pursuant to not opposed to, the terms best interests of the Operative Agreements (unless such requirement results from the actions of an Indemnitee not required by or made pursuant to the Operative Agreements);
(9) to the extent attributable to any amount which any Indemnitee expressly agrees to pay or such Indemnitee expressly agrees shall not be paid by or be reimbursed by Borrower;
(10) to the extent that it is an ordinary and usual operating or overhead expense;
(11) for any Lien attributable to such Indemnitee or any Related Indemnitee that Borrower is not obligated to discharge under the Operative Agreements;
(12) if another provision of an Operative Agreement specifies the extent of Borrower’s responsibility or obligation Company with respect to such ExpenseProceeding, (ii) with respect to any Proceeding that is a criminal action or proceeding, Indemnitee had reasonable cause to believe Indemnitee's conduct was unlawful, (iii) Indemnitee shall have been adjudged to be liable to the Company with respect to such Proceeding, except to the extent arising from a cause other than Borrower’s failure to comply with the Delaware Court of Chancery or the court in which such specified responsibility or obligation; or
(13) to the extent imposed on an Indemnitee action was brought shall permit indemnification as a result of any non-exempt “prohibited transaction” under 406(a) of ERISA or provided in Section 4975(c)(1145(b) of the Code caused Delaware General Corporation Law or (iv) otherwise prohibited by such applicable law;
(b) Proceedings Initiated by Indemnitee. For purposes To indemnify or advance Expenses to Indemnitee with respect to Proceedings initiated or brought voluntarily by Indemnitee and not by way of defense, except (i) with respect to any Proceeding (x) brought to establish or enforce a right to indemnification or advancement of Expenses under this Section 9.1, a Person shall be considered a “Related Indemnitee” of an Indemnitee if that Person is an Affiliate or employer of such Indemnitee, a director, officer, employee, agentAgreement, or servant any other agreement, or insurance policy, or Certificate of Incorporation or Bylaws, now or hereafter in effect relating to any Proceeding, or (y) specifically authorized by the Board of Directors, or (ii) as otherwise required under Section 145 of the Delaware General Corporation Law, regardless of whether Indemnitee ultimately is determined to be entitled to such indemnification, advance expense payment or insurance recovery, as the case may be;
(c) Claims Under Section 16(b). To indemnify Indemnitee for Expenses, judgments, fines or penalties sustained in any proceeding for an accounting of profits arising from the purchase and sale by Indemnitee of securities of the Company in violation of Section 16(b) of the Securities Exchange Act of 1934, as amended, rules and regulations promulgated thereunder, or any such Affiliate.similar provisions of any federal, state or local statute; or
Appears in 1 contract
Exceptions. Notwithstanding anything in Section 9.1(a)the foregoing, Borrower shall a Stockholder will not be required to indemnify, protect, defend or hold harmless comply with Section 2.2(a) above in connection with any Indemnitee pursuant to Section 9.1(aproposed Sale of the Company (the “Proposed Sale”) against any Expense of such Indemniteeunless:
(1i) for any Taxes representations and warranties to be made by such Stockholder in connection with the Proposed Sale are limited to representations and warranties related to authority, ownership and the ability to convey title to such Shares, including but not limited to representations and warranties that (i) the Stockholder holds all right, title and interest in and to the Shares such Stockholder purports to hold, free and clear of all liens and encumbrances, (ii) the obligations of the Stockholder in connection with the transaction have been duly authorized, if applicable, (iii) the documents to be entered into by the Stockholder have been duly executed by the Stockholder and delivered to the acquiror and are enforceable against the Stockholder in accordance with their respective terms and (iv) neither the execution and delivery of documents to be entered into in connection with the transaction, nor the performance of the Stockholder’s obligations thereunder, will cause a breach or a loss violation of Tax Benefitthe terms of any agreement, whether law or not Borrower is required to indemnify therefor pursuant to Section 9.3judgment, order or decree of any court or governmental agency;
(2ii) to the extent attributable to any Transfer (voluntary or involuntary) by or on behalf of such Indemnitee of any Equipment Note, Commitment or interest therein, except Stockholder shall not be liable for reasonable out-of-pocket costs and expenses incurred as a result of any such Transfer requested in writing by Borrower or made or effected as required by or pursuant to the terms of the Operative Agreements or made or effected in connection with or pursuant to the exercise of remedies under any Operative Agreement;
(3) to the extent attributable to the gross negligence or willful misconduct of such Indemnitee or any “Related Indemnitee” (as defined at the end of this Section 9.1(b)) (other than gross negligence or willful misconduct imputed to such Person solely by reason of its interest in the Aircraft or being party to any Operative Agreement);
(4) to the extent attributable to the incorrectness or breach inaccuracy of any representation or warranty of such Indemnitee or made by any Related Indemniteeother Person in connection with the Proposed Sale, contained in or made pursuant to any Operative Agreement;
other than the Company (5) except to the extent attributable that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the failure Company as well as breach by such Indemnitee or any Related Indemnitee to perform or observe any express agreement, covenant, or condition on its part to be performed or observed in any Operative Agreement;
(6) to the extent attributable to the offer or sale by such Indemnitee or any Related Indemnitee stockholder of any interest in the Equipment Notes or its Commitment in violation of the registration requirements of the Securities Act or in violation of the registration requirements of any applicable state or foreign securities Laws (other than any thereof caused identical representations, warranties and covenants provided by acts or omissions of Borrowerall stockholders);
(7iii) the liability for indemnification, if any, of such Stockholder in the Proposed Sale and for the inaccuracy of any representations and warranties made by the Company in connection with such Proposed Sale, is several and not joint with any other Person (except to the extent attributable that funds may be paid out of an escrow established to Security Agent’s failure cover breach of representations, warranties and covenants of the Company as well as breach by any stockholder of any identical representations, warranties and covenants provided by all stockholders), and is pro rata in proportion to distribute funds received and distributable by it the amount of consideration paid to such Stockholder in connection with such Proposed Sale (in accordance with the Operative Agreements;provisions of the Certificate); and
(8) other than during iv) liability shall be limited to such Stockholder’s pro rata share (determined in proportion to proceeds received by such Stockholder in connection with such Proposed Sale in accordance with the existence provisions of an Event the Certificate) of Defaulta negotiated aggregate indemnification amount that applies equally to all Stockholders but that in no event exceeds the amount of consideration actually paid to such Stockholder in connection with such Proposed Sale, to the extent attributable to the authorization or giving or withholding of any future amendments, supplements, waivers, or consents except with respect to any Operative Agreementclaims related to fraud by such Stockholder, other than any requested by Borrower or required by or made pursuant to the terms of the Operative Agreements (unless such requirement results from the actions of an Indemnitee not required by or made pursuant to the Operative Agreements);
(9) to the extent attributable to any amount liability for which any Indemnitee expressly agrees to pay or such Indemnitee expressly agrees shall need not be paid by or be reimbursed by Borrower;
(10) to the extent that it is an ordinary and usual operating or overhead expense;
(11) for any Lien attributable limited as to such Indemnitee or any Related Indemnitee that Borrower is not obligated to discharge under the Operative Agreements;
(12) if another provision of an Operative Agreement specifies the extent of Borrower’s responsibility or obligation with respect to such Expense, to the extent arising from a cause other than Borrower’s failure to comply with such specified responsibility or obligation; or
(13) to the extent imposed on an Indemnitee as a result of any non-exempt “prohibited transaction” under 406(a) of ERISA or Section 4975(c)(1) of the Code caused by such Indemnitee. For purposes of this Section 9.1, a Person shall be considered a “Related Indemnitee” of an Indemnitee if that Person is an Affiliate or employer of such Indemnitee, a director, officer, employee, agent, or servant of such Indemnitee or any such AffiliateStockholder.
Appears in 1 contract
Sources: Stockholders' Agreement (Dermata Therapeutics, Inc.)
Exceptions. Notwithstanding anything contained in Section 9.1(a)8.1.1, Borrower Owner shall not be required to indemnify, protect, defend or and hold harmless any Indemnitee pursuant to Section 9.1(a) against 8.1.1 in respect of any Expense of such Indemnitee:
(1a) for For any Taxes or a loss of Tax Benefitbenefit, whether or not Borrower Owner is required to indemnify therefor pursuant to Section 9.38.3;
(2b) Except to the extent attributable to acts or events occurring prior thereto, acts or events (other than acts or events related to the performance by Owner of its obligations pursuant to the terms of the Operative Agreements) that occur after the Trust Indenture is required to be terminated in accordance with Section 11.01 of the Trust Indenture; provided, that nothing in this clause (b) shall be deemed to exclude or limit any claim that any Indemnitee may have under applicable Law by reason of an Event of Default or for damages from Owner for breach of Owner’s covenants contained in the Operative Agreements or to release Owner from any of its obligations under the Operative Agreements that expressly provide for performance after termination of the Trust Indenture;
(c) To the extent attributable to any Transfer (voluntary or involuntary) by or on behalf of such Indemnitee of any Equipment Note, Commitment Note or interest therein, except for reasonable out-of-pocket costs and expenses incurred as a result of any such Transfer requested in writing by Borrower or made or effected as required by or pursuant to the terms of the Operative Agreements or made or effected in connection with or pursuant to the exercise of remedies under any Operative Agreement;
(3d) to To the extent attributable to the gross negligence or willful misconduct of such Indemnitee or any “Related Indemnitee” related Indemnitee (as defined at the end of this Section 9.1(b)below) (other than gross negligence or willful misconduct imputed to such Person solely person by reason of its interest in the Aircraft or being party to any Operative Agreement);
(4e) to To the extent attributable to the incorrectness or breach of any representation or warranty of such Indemnitee or any Related Indemnitee, related Indemnitee contained in or made pursuant to any Operative Agreement or any Pass Through Agreement;
(5f) to To the extent attributable to the failure by such Indemnitee or any Related related Indemnitee to perform or observe any express agreement, covenant, covenant or condition on its part to be performed or observed in any Operative Agreement or any Pass Through Agreement;
(6g) to To the extent attributable to the offer or sale by such Indemnitee or any Related related Indemnitee of any interest in the Aircraft, the Equipment Notes Notes, the Pass Through Certificates, or its Commitment any similar interest, in violation of the registration requirements of the Securities Act or in violation of the registration requirements of any other applicable federal, state or foreign securities Laws (other than any thereof caused by acts or omissions of BorrowerOwner);
(7i) With respect to any Indemnitee (other than Indenture Trustee), to the extent attributable to Security Agent’s the failure of the Indenture Trustee to distribute funds received and distributable by it in accordance with the Operative Trust Indenture, (ii) with respect to any Indemnitee (other than the PARTICIPATION AGREEMENT (2012-1) 22 Subordination Agent), to the extent attributable to the failure of the Subordination Agent to distribute funds received and distributable by it in accordance with the Intercreditor Agreement, (iii) with respect to any Indemnitee (other than the Pass Through Trustees), to the extent attributable to the failure of a Pass Through Trustee to distribute funds received and distributable by it in accordance with the Pass Through Trust Agreements, (iv) with respect to any Indemnitee (other than the Escrow Agent), to the extent attributable to the failure of the Escrow Agent to pay funds received and payable by it in accordance with any Escrow Agreement, (v) with respect to any Indemnitee (other than the Paying Agent), to the extent attributable to the failure of the Paying Agent to distribute funds received and distributable by it in accordance with any Escrow Agreement, (vi) to the extent attributable to the failure of the Depositary to pay funds payable by it in accordance with any Deposit Agreement, (vii) with respect to Indenture Trustee, to the extent attributable to the negligence or willful misconduct of Indenture Trustee in the distribution of funds received and distributable by it in accordance with the Trust Indenture, (viii) with respect to the Subordination Agent, to the extent attributable to the negligence or willful misconduct of the Subordination Agent in the distribution of funds received and distributable by it in accordance with the Intercreditor Agreement, (ix) with respect to the Pass Through Trustees, to the extent attributable to the negligence or willful misconduct of a Pass Through Trustee in the distribution of funds received and distributable by it in accordance with the Pass Through Trust Agreements, (x) with respect to the Escrow Agent, to the extent attributable to the negligence or willful misconduct of the Escrow Agent in the payment of funds received and payable by it in accordance with any Escrow Agreement, (xi) with respect to the Paying Agent, to the extent attributable to the negligence or willful misconduct of the Paying Agent in the distribution of funds received and distributable by it in accordance with any Escrow Agreement, (xii) with respect to any Indemnitee (other than the Securities Intermediary), to the extent attributable to the failure of the Securities Intermediary to distribute funds received and distributable by it in accordance with the Trust Indenture and (xiii) with respect to Securities Intermediary, to the extent attributable to the negligence or willful misconduct of Securities Intermediary in the distribution of funds received and distributable by it in accordance with the Trust Indenture;
(8) other i) Other than during the existence continuation of an Event of Default, to the extent attributable to the authorization or giving or withholding of any future amendments, supplements, waivers, waivers or consents with respect to any Operative Agreement, Agreement or Pass Through Agreement other than any such as have been requested by Borrower Owner or as are required by or made pursuant to the terms of the Operative Agreements or Pass Through Agreements (unless such requirement results from the actions of an Indemnitee not required by or made pursuant to the Operative Agreements or the Pass Through Agreements);
(9j) to To the extent attributable to any amount which any Indemnitee expressly agrees to pay or such Indemnitee expressly agrees shall not be paid by or be reimbursed by BorrowerOwner;
(10k) to To the extent that it is an ordinary and usual operating or overhead expense;
(11l) for For any Lien attributable to such Indemnitee or any Related Indemnitee that Borrower is not obligated to discharge under the Operative Agreementsrelated Indemnitee;
(12m) if If another provision of an Operative Agreement or a Pass Through Agreement specifies the extent of BorrowerOwner’s responsibility or obligation with respect to such Expense, to the PARTICIPATION AGREEMENT (2012-1) 23 extent arising from a cause other than Borrower’s failure of Owner to comply with such specified responsibility or obligation; or
(13n) to To the extent imposed on incurred by or asserted against an Indemnitee as a result of any non-exempt “prohibited transaction” under 406(a) ”, within the meaning of Section 406 of ERISA or Section 4975(c)(1) of the Code caused by such IndemniteeCode. For purposes of this Section 9.18.1, a Person shall be considered a “Related Indemniteerelated” of Indemnitee with respect to an Indemnitee if that such Person is an Affiliate or employer of such Indemnitee, a director, officer, employee, agent, or servant of such Indemnitee or any such AffiliateAffiliate or a successor or permitted assignee of any of the foregoing.
Appears in 1 contract
Exceptions. Notwithstanding anything contained in Section 9.1(a)8.1.1, Borrower Owner shall not be required to indemnify, protect, defend or and hold harmless any Indemnitee pursuant to Section 9.1(a) against 8.1.1 in respect of any Expense of such Indemnitee:
(1a) for For any Taxes or a loss of Tax Benefitbenefit, whether or not Borrower Owner is required to indemnify therefor pursuant to Section 9.38.3;
(2b) Except to the extent attributable to acts or events occurring prior thereto, acts or events (other than acts or events related to the performance by Owner of its obligations pursuant to the terms of the Operative Agreements) that occur after the Trust Indenture is required to be terminated in accordance with Section 11.01 of the Trust Indenture; provided, that nothing in this clause (b) shall be deemed to exclude or limit any claim that any Indemnitee may have under applicable Law by reason of an Event of Default or for damages from Owner for breach of Owner’s covenants contained in the Operative Agreements or to release Owner from any of its obligations under the Operative Agreements that expressly provide for performance after termination of the Trust Indenture;
(c) To the extent attributable to any Transfer (voluntary or involuntary) by or on behalf of such Indemnitee of any Equipment Note, Commitment Note or interest therein, except for reasonable out-of-pocket costs and expenses incurred as a result of any such Transfer requested in writing by Borrower or made or effected as required by or pursuant to the terms of the Operative Agreements or made or effected in connection with or pursuant to the exercise of remedies under any Operative Agreement;
(3d) to [Intentionally Omitted]
(e) To the extent attributable to the gross negligence or willful misconduct of such Indemnitee or any “Related Indemnitee” related Indemnitee (as defined at the end of this Section 9.1(b)below) (other than gross negligence or willful misconduct imputed to such Person solely person by reason of its interest in the Aircraft or being party to any Operative Agreement);
(4f) to [Intentionally Omitted]
(g) To the extent attributable to the incorrectness or breach of any representation or warranty of such Indemnitee or any Related Indemnitee, related Indemnitee contained in or made pursuant to any Operative Agreement or any Pass Through Agreement;
(5h) to To the extent attributable to the failure by such Indemnitee or any Related related Indemnitee to perform or observe any express agreement, covenant, covenant or condition on its part to be performed or observed in any Operative Agreement or any Pass Through Agreement;
(6i) to To the extent attributable to the offer or sale by such Indemnitee or any Related related Indemnitee of any interest in the Aircraft, the Equipment Notes Notes, the Pass Through Certificates, or its Commitment any similar interest, in violation of the registration requirements of the Securities Act or in violation of the registration requirements of any other applicable federal, state or foreign securities Laws (other than any thereof caused by acts or omissions of BorrowerOwner);
(7i) With respect to any Indemnitee (other than Mortgagee), to the extent attributable to Security Agent’s the failure of the Mortgagee to distribute funds received and distributable by it in accordance with the Operative Trust Indenture, (ii) with respect to any Indemnitee (other than the Subordination Agent), to the extent attributable to the failure of the Subordination Agent to distribute funds received and distributable by it in accordance with the Intercreditor Agreement, (iii) with respect to any Indemnitee (other than the Pass Through Trustees), to the extent attributable to the failure of a Pass Through Trustee to distribute funds received and distributable by it in accordance with the Pass Through Trust Agreements, (iv) with respect to any Indemnitee (other than the Escrow Agent), to the extent attributable to the failure of the Escrow Agent to pay funds received and payable by it in accordance with any Escrow Agreement, (v) with respect to any Indemnitee (other than the Paying Agent), to the extent attributable to the failure of the Paying Agent to distribute funds received and distributable by it in accordance with any Escrow Agreement, (vi) to the extent attributable to the failure of the Depositary to pay funds payable by it in accordance with any Deposit Agreement, (vii) with respect to Mortgagee, to the extent attributable to the negligence or willful misconduct of Mortgagee in the distribution of funds received and distributable by it in accordance with the Trust Indenture, (viii) with respect to the Subordination Agent, to the extent attributable to the negligence or willful misconduct of the Subordination Agent in the distribution of funds received and distributable by it in accordance with the Intercreditor Agreement, (ix) with respect to the Pass Through Trustees, to the extent attributable to the negligence or willful misconduct of a Pass Through Trustee in the distribution of funds received and distributable by it in accordance with the Pass Through Trust Agreements, (x) with respect to the Escrow Agent, to the extent attributable to the negligence or willful misconduct of the Escrow Agent in the payment of funds received and payable by it in accordance with any Escrow Agreement and (xi) with respect to the Paying Agent, to the extent attributable to the negligence or willful misconduct of the Paying Agent in the distribution of funds received and distributable by it in accordance with any Escrow Agreement;
(8) other k) Other than during the existence continuation of an Event of Default, to the extent attributable to the authorization or giving or withholding of any future amendments, supplements, waivers, waivers or consents with respect to any Operative Agreement, Agreement or Pass Through Agreement other than any such as have been requested by Borrower Owner or as are required by or made pursuant to the terms of the Operative Agreements or Pass Through Agreements (unless such requirement results from the actions of an Indemnitee not required by or made pursuant to the Operative Agreements or the Pass Through Agreements);
(9l) to To the extent attributable to any amount which any Indemnitee expressly agrees to pay or such Indemnitee expressly agrees shall not be paid by or be reimbursed by BorrowerOwner;
(10m) to To the extent that it is an ordinary and usual operating or overhead expense;
(11n) for [Intentionally Omitted]
(o) For any Lien attributable to such Indemnitee or any Related Indemnitee that Borrower is not obligated to discharge under the Operative Agreementsrelated Indemnitee;
(12p) if If another provision of an Operative Agreement or a Pass Through Agreement specifies the extent of BorrowerOwner’s responsibility or obligation with respect to such Expense, to the extent arising from a cause other than Borrower’s failure of Owner to comply with such specified responsibility or obligation; or
(13q) to To the extent imposed on incurred by or asserted against an Indemnitee as a result of any non-exempt “"prohibited transaction” under 406(a) ", within the meaning of Section 406 of ERISA or Section 4975(c)(1) of the Code caused by such IndemniteeCode. For purposes of this Section 9.18.1, a Person shall be considered a “Related Indemnitee” of "related" Indemnitee with respect to an Indemnitee if that such Person is an Affiliate or employer of such Indemnitee, a director, officer, employee, agent, or servant of such Indemnitee or any such AffiliateAffiliate or a successor or permitted assignee of any of the foregoing.
Appears in 1 contract
Sources: Participation Agreement (Continental Airlines Inc /De/)
Exceptions. Notwithstanding anything contained in Section 9.1(a)7.1.1, Borrower Owner shall not be required to indemnify, protect, defend or and hold harmless any Indemnitee pursuant to Section 9.1(a) against 7.1.1 in respect of any Expense of such Indemnitee:
(1a) for For any Taxes or a loss of Tax Benefitbenefit, whether or not Borrower Owner is required to indemnify therefor pursuant to Section 9.37.3;
(2b) Except to the extent attributable to acts or events occurring prior thereto, (i) acts or events (other than acts or events related to the performance by Owner of its obligations pursuant to the terms of the Operative Agreements) in relation to any Aircraft or related Collateral that occur after the Lien of the Trust Indenture is required to be released in respect of such Aircraft in accordance with Section 11.01 of the Trust Indenture or (ii) acts or events (other than acts or events related to the performance by Owner of its obligations pursuant to the terms of the Operative Agreements) that occur after the Trust Indenture is required to be terminated in accordance with Section 11.01 of the Trust Indenture; provided, that nothing in this clause (b) shall be deemed to exclude or limit any claim that any Indemnitee may have under applicable Law by reason of an Event of Default or for damages from Owner for breach of Owner’s covenants contained in the Operative Agreements or to release Owner from any of its obligations under the Operative Agreements that expressly provide for performance after termination of the Trust Indenture;
(c) To the extent attributable to any Transfer (voluntary or involuntary) by or on behalf of such Indemnitee of any Equipment Note, Commitment any Loan, or in each case any interest therein, except for reasonable out-of-pocket costs and expenses incurred as a result of any such Transfer requested in writing by Borrower or made or effected as required by or pursuant to the terms of the Operative Agreements or made or effected in connection with or pursuant to the exercise of remedies under any Operative Agreement;
(3d) to To the extent attributable to the gross negligence or willful misconduct of such Indemnitee or any “Related Indemnitee” related Indemnitee (as defined at the end of this Section 9.1(b)below) (other than gross negligence or willful misconduct imputed to such Person solely person by reason of its interest in the Aircraft or being party to any Operative Agreement);
(4e) to To the extent attributable to the incorrectness or breach of any representation or warranty of such Indemnitee or any Related Indemnitee, related Indemnitee contained in or made pursuant to any Operative Agreement, any Trust Obligation Agreement, the Loan Agreement or the Borrower Security Agreement;
(5f) to To the extent attributable to the failure by such Indemnitee or any Related related Indemnitee to perform or observe any express agreement, covenant, covenant or condition on its part to be performed or observed in any Operative Agreement, any Trust Obligation Agreement, the Loan Agreement or the Borrower Security Agreement;
(6g) to To the extent attributable to the offer or sale by such Indemnitee or any Related related Indemnitee of any interest in the Aircraft, the Equipment Notes Notes, the Loans, or its Commitment any similar interest, in violation of the registration requirements of the Securities Act or in violation of the registration requirements of any other applicable federal, state or foreign securities Laws (other than any thereof caused by acts or omissions of BorrowerOwner);
(7i) With respect to any Indemnitee (other than Mortgagee), to the extent attributable to Security Agent’s the failure of the Mortgagee to distribute funds received and distributable by it in accordance with the Operative Trust Indenture, (ii) with respect to any Indemnitee (other than the Subordination Agent), to the extent attributable to the failure of the Subordination Agent to distribute funds received and distributable by it in accordance with the Intercreditor Agreement, (iii) with respect to any Indemnitee (other than the Applicable Trustees), to the extent attributable to the failure of an Applicable Trustee to distribute funds received and distributable by it in accordance with the Applicable Trust Agreements, (iv) with respect to Mortgagee, to the extent attributable to the negligence or willful misconduct of Mortgagee in the distribution of funds received and distributable by it in accordance with the Trust Indenture, (v) with respect to the Subordination Agent, to the extent attributable to the negligence or willful misconduct of the Subordination Agent in the distribution of funds received and distributable by it in accordance with the Intercreditor Agreement and (vi) with respect to the Applicable Trustees, to the extent attributable to the negligence or willful misconduct of an Applicable Trustee in the distribution of funds received and distributable by it in accordance with the Applicable Trust Agreement;
(8) other i) Other than during the existence continuation of an Event of Default, to the extent attributable to the authorization or giving or withholding of any future amendments, supplements, waivers, waivers or consents with respect to any Operative Agreement, any Trust Obligation Agreement, the Loan Agreement or the Borrower Security Agreement other than any such as have been requested by Borrower Owner or as are required by or made pursuant to the terms of the Operative Agreements Agreements, the Trust Obligation Agreements, the Loan Agreement or the Borrower Security Agreement (unless such requirement results from the actions of an Indemnitee not required by or made pursuant to the Operative Agreements, the Trust Obligation Agreements, the Loan Agreement or the Borrower Security Agreement);
(9j) to To the extent attributable to any amount which any Indemnitee expressly agrees to pay or such Indemnitee expressly agrees shall not be paid by or be reimbursed by BorrowerOwner;
(10k) to To the extent that it is an ordinary and usual operating or overhead expense;
(11l) for For any Lien attributable to such Indemnitee or any Related Indemnitee that Borrower is not obligated to discharge under the Operative Agreementsrelated Indemnitee;
(12m) if If another provision of an Operative Agreement or Trust Obligation Agreement specifies the extent of BorrowerOwner’s responsibility or obligation with respect to such Expense, to the extent arising from a cause other than Borrower’s failure of Owner to comply with such specified responsibility or obligation; or;
(13n) to To the extent imposed on incurred by or asserted against an Indemnitee as a result of any non-exempt “prohibited transaction” under 406(a) ”, within the meaning of Section 406 of ERISA or Section 4975(c)(1) of the Code Code;
(o) To the extent consisting of (i) principal of, or interest on, the Loans under the Loan Agreement or (ii) any other amount payable by the Borrower for which there is no corresponding payment obligation of the Owner under the Operative Agreements (in connection with the Notes or otherwise); or
(p) Any “Default” or “Event of Default” under the Loan Agreement that is not directly caused by such Indemniteea Default by the Owner under the Operative Agreements (including, without limitation, any Expense relating to the enforcement of the terms of the Loan Agreement or the Borrower Security Agreement while no Event of Default is continuing). For purposes of this Section 9.17.1, a Person shall be considered a “Related Indemniteerelated” of Indemnitee with respect to an Indemnitee if that such Person is an Affiliate or employer of such Indemnitee, a director, officer, employee, agent, or servant of such Indemnitee or any such AffiliateAffiliate or a successor or permitted assignee of any of the foregoing.
Appears in 1 contract
Sources: Participation Agreement (Wheels Up Experience Inc.)
Exceptions. Notwithstanding anything in Section 9.1(a)any other provision of this Agreement, Borrower the Company shall not be required to indemnify, protect, defend or hold harmless any Indemnitee pursuant to Section 9.1(a) against any Expense of such Indemnitee:
(1) for any Taxes or a loss of Tax Benefit, whether or not Borrower is required to indemnify therefor pursuant to Section 9.3;
(2) to the extent attributable to any Transfer (voluntary or involuntary) by or on behalf of such Indemnitee of any Equipment Note, Commitment or interest therein, except for reasonable out-of-pocket costs and expenses incurred as a result of any such Transfer requested in writing by Borrower or made or effected as required by or obligated pursuant to the terms of this Agreement:
a. To indemnify or advance Expenses to Indemnitee with respect to Proceedings arising out of acts, omissions or transactions for which Indemnitee is prohibited from receiving indemnification under applicable law.
b. To indemnify or advance Expenses to Indemnitee with respect to Proceedings initiated or brought voluntarily by Indemnitee and not by way of defense, including defense through counterclaim or crossclaim, except (i) with respect to actions or proceedings brought to establish or enforce a right to indemnification under this Agreement or any other agreement or insurance policy or under the Operative Agreements Charter Documents now or made hereafter in effect relating to Proceedings for Indemnifiable Events, or effected (ii) in connection with specific cases if the Board of Directors of the Company has approved the initiation or pursuant to the exercise of remedies under any Operative Agreement;
(3) to the extent attributable to the gross negligence or willful misconduct bringing of such Indemnitee or any “Related Indemnitee” (as defined at the end of this Section 9.1(b)) (other than gross negligence or willful misconduct imputed to such Person solely Proceeding by reason of its interest in the Aircraft or being party to any Operative Agreement);
(4) to the extent attributable to the incorrectness or breach of any representation or warranty of such Indemnitee or any Related Indemnitee, contained in or made pursuant to any Operative Agreement;
(5) to the extent attributable to the failure by such Indemnitee or any Related Indemnitee to perform or observe any express agreement, covenant, or condition on its part to be performed or observed in any Operative Agreement;
(6) to the extent attributable to the offer or sale by such Indemnitee or any Related Indemnitee of any interest in the Equipment Notes or its Commitment in violation a majority vote of the registration requirements of the Securities Act or in violation of the registration requirements of Disinterested Directors.
c. To indemnify Indemnitee for any applicable state or foreign securities Laws (other than any thereof caused Expenses incurred by acts or omissions of Borrower);
(7) to the extent attributable to Security Agent’s failure to distribute funds received and distributable by it in accordance with the Operative Agreements;
(8) other than during the existence of an Event of Default, to the extent attributable to the authorization or giving or withholding of any future amendments, supplements, waivers, or consents Indemnitee with respect to any Operative action instituted (i) by Indemnitee to enforce or interpret this Agreement, other than any requested if a court having jurisdiction over such action determines that each of the material assertions made by Borrower Indemnitee as a basis for such action was not made in good faith or required was frivolous, or (ii) by or made pursuant to in the terms name of the Operative Agreements (unless Company to enforce or interpret this Agreement, if a court having jurisdiction over such requirement results action determines that each of the material defenses asserted by Indemnitee in such action was made in bad faith or was frivolous.
d. To indemnify Indemnitee for Expenses, judgments, fines, penalties and the payment of profits arising from the actions purchase and sale by Indemnitee of securities in violation of Section 16(b) of the Securities Exchange Act of 1934, as amended, or any similar successor statute.
e. To indemnify Indemnitee for Liabilities or Expenses arising from an Indemnitee not required administrative or civil enforcement action commenced by or made pursuant to the Operative Agreements);
(9) a federal banking agency to the extent attributable to any amount which any Indemnitee expressly agrees to pay prohibited by applicable laws or such Indemnitee expressly agrees shall not be paid by or be reimbursed by Borrower;
(10) to the extent that it is an ordinary and usual operating or overhead expense;
(11) for any Lien attributable to such Indemnitee or any Related Indemnitee that Borrower is not obligated to discharge under the Operative Agreements;
(12) if another provision of an Operative Agreement specifies the extent of Borrower’s responsibility or obligation with respect to such Expense, to the extent arising from a cause other than Borrower’s failure to comply with such specified responsibility or obligation; or
(13) to the extent imposed on an Indemnitee as a result of any non-exempt “prohibited transaction” under 406(a) of ERISA or Section 4975(c)(1) of the Code caused by such Indemnitee. For purposes of this Section 9.1, a Person shall be considered a “Related Indemnitee” of an Indemnitee if that Person is an Affiliate or employer regulations of such Indemnitee, a director, officer, employee, agent, or servant of such Indemnitee or any such Affiliateagency.
Appears in 1 contract
Exceptions. Notwithstanding anything in Section 9.1(a)the foregoing, Borrower shall a Member will not be required to indemnify, protect, defend or hold harmless comply with Section 16.5(b) above in connection with any Indemnitee pursuant to Section 9.1(aproposed Sale of the Company (the “Proposed Sale”) against any Expense of such Indemniteeunless:
(1i) for any Taxes representations and warranties to be made by such Member in connection with the Proposed Sale are limited to representations and warranties related to authority, ownership and the ability to convey title to such Shares, including but not limited to representations and warranties that (A) the Member holds all right, title and interest in and to the Shares such Member purports to hold, free and clear of all liens and Encumbrances, (B) the obligations of the Member in connection with the transaction have been duly authorized, if applicable, (C) the documents to be entered into by the Member have been duly executed by the Member and delivered to the acquirer and are enforceable against the Member in accordance with their respective terms and (D) neither the execution and delivery of documents to be entered into in connection with the transaction, nor the performance of the Member’s obligations thereunder, will cause a breach or a loss violation of Tax Benefitthe terms of any agreement, whether law or not Borrower is required to indemnify therefor pursuant to Section 9.3judgment, order or decree of any court or governmental agency;
(2ii) to the extent attributable to any Transfer (voluntary or involuntary) by or on behalf of such Indemnitee of any Equipment Note, Commitment or interest therein, except Member shall not be liable for reasonable out-of-pocket costs and expenses incurred as a result of any such Transfer requested in writing by Borrower or made or effected as required by or pursuant to the terms of the Operative Agreements or made or effected in connection with or pursuant to the exercise of remedies under any Operative Agreement;
(3) to the extent attributable to the gross negligence or willful misconduct of such Indemnitee or any “Related Indemnitee” (as defined at the end of this Section 9.1(b)) (other than gross negligence or willful misconduct imputed to such Person solely by reason of its interest in the Aircraft or being party to any Operative Agreement);
(4) to the extent attributable to the incorrectness or breach inaccuracy of any representation or warranty made by any other Person in connection with the Proposed Sale, other than for the inaccuracy of such Indemnitee any representation or any Related Indemnitee, contained warranty made by the Company in or made pursuant to any Operative Agreementconnection with the Proposed Sale;
(5iii) to the extent attributable to liability for indemnification, if any, of such Member in the failure Proposed Sale and for the inaccuracy of any representations and warranties made by the Company in connection with such Indemnitee or Proposed Sale, is several and not joint with any Related Indemnitee to perform or observe any express agreement, covenant, or condition on its part to be performed or observed in any Operative Agreementother Person;
(6iv) the liability for indemnification shall be limited to such Member’s applicable share (determined based on the extent attributable respective proceeds payable to the offer or sale by each Member in connection with such Indemnitee or any Related Indemnitee of any interest in the Equipment Notes or its Commitment in violation of the registration requirements of the Securities Act or in violation of the registration requirements of any applicable state or foreign securities Laws (other than any thereof caused by acts or omissions of Borrower);
(7) to the extent attributable to Security Agent’s failure to distribute funds received and distributable by it Proposed Sale in accordance with the Operative Agreementsprovisions of this Agreement) of a negotiated aggregate indemnification amount that applies equally to all Members but that in no event exceeds the amount of consideration actually paid to such Member in connection with such Proposed Sale, except with respect to claims of fraud by such Member, the liability for which need not be limited as to such Member;
(8) v) upon the consummation of the Proposed Sale: (A) except as provided in Section 16.5(b)(v), each holder of each class or series of Shares will receive the same form of consideration for their Shares of such class as is received by other than during holders in respect of their Shares of such same class of Shares; and (B) unless the existence of an Event of Default, Major Members elect to receive a lesser amount by written notice given to the extent attributable Company at least [***] prior to the authorization or giving or withholding effective date of any future amendmentssuch Proposed Sale, supplementsthe aggregate consideration receivable by all holders of Shares shall be allocated among the holders of Issued Shares pro rata to their holding of Issued Shares; provided, waivershowever, or consents with respect that, notwithstanding the foregoing provisions of this Subsection 16.5(b)(v), if the consideration to any Operative Agreementbe paid in exchange for the Shares, other than any requested by Borrower or required by or made as applicable, pursuant to this Subsection 16.5(b)(v) includes any securities and due receipt thereof by any Member or would require under applicable law (x) the terms registration or qualification of the Operative Agreements (unless such requirement results from the actions securities or of an Indemnitee not required by any person as a broker or made pursuant to the Operative Agreements);
(9) to the extent attributable to any amount which any Indemnitee expressly agrees to pay dealer or such Indemnitee expressly agrees shall not be paid by or be reimbursed by Borrower;
(10) to the extent that it is an ordinary and usual operating or overhead expense;
(11) for any Lien attributable to such Indemnitee or any Related Indemnitee that Borrower is not obligated to discharge under the Operative Agreements;
(12) if another provision of an Operative Agreement specifies the extent of Borrower’s responsibility or obligation agent with respect to such Expensesecurities; or (y) provision to any Member of any information other than such information as a prudent issuer would generally furnish in an offering made solely to “accredited investors” as defined in Regulation D promulgated under the Securities Act, the Company may cause to be paid to any such Member in lieu thereof, against surrender of the Shares which would have otherwise been sold by such Member, an amount in cash equal to the extent arising from a cause other than Borrower’s failure to comply with fair value (as determined in good faith by the Board of Directors) of the securities which such specified responsibility or obligation; orMember would otherwise receive as of the date of the issuance of such securities in exchange for the Shares;
(13vi) except as provided in Section 16.5(b)(v), subject to clause (v) above, requiring the same form of consideration to be available to the extent imposed on holders of any single class of Shares, if any holders of any Shares are given an Indemnitee option as to the form and amount of consideration to be received as a result of any non-exempt “prohibited transaction” under 406(athe Proposed Sale, all holders of such Shares will be given the same option; and
(vii) of ERISA no Member who is not a current or Section 4975(c)(1) former employee of the Code caused by such Indemnitee. For purposes of this Section 9.1, a Person Company shall be considered a “Related Indemnitee” required to agree to any restrictive covenant in connection with any Proposed Sale (including any covenant not to compete with or covenant not to solicit or hire customers, employees or suppliers of an Indemnitee if that Person is an Affiliate or employer of such Indemnitee, a director, officer, employee, agent, or servant of such Indemnitee or any such Affiliateparty to the Proposed Sale).
Appears in 1 contract
Exceptions. Notwithstanding anything in Section 9.1(a)the foregoing, Borrower shall a Stockholder will not be required to indemnify, protect, defend or hold harmless comply with Subsection 3.3 above in connection with any Indemnitee pursuant to Section 9.1(aproposed Sale of the Company (the “Proposed Sale”) against any Expense of such Indemniteeunless:
(1a) for any Taxes representations and warranties to be made by such Stockholder in connection with the Proposed Sale are limited to representations and warranties related to authority, ownership and the ability to convey title to such shares, including but not limited to representations and warranties that (i) the Stockholder holds all right, title and interest in and to the shares such Stockholder purports to hold, free and clear of all liens and encumbrances, (ii) the obligations of the Stockholder in connection with the transaction have been duly authorized, if applicable, (iii) the documents to be entered into by the Stockholder have been duly executed by the Stockholder and delivered to the acquirer and are enforceable against the Stockholder in accordance with their respective terms and (iv) neither the execution and delivery of documents to be entered into in connection with the transaction, nor the performance of the Stockholder’s obligations thereunder, will cause a breach or a loss violation of Tax Benefitthe terms of any agreement, whether law or not Borrower is required to indemnify therefor pursuant to Section 9.3judgment, order or decree of any court or governmental agency;
(2b) to the extent attributable to any Transfer (voluntary or involuntary) by or on behalf of such Indemnitee of any Equipment Note, Commitment or interest therein, except Stockholder shall not be liable for reasonable out-of-pocket costs and expenses incurred as a result of any such Transfer requested in writing by Borrower or made or effected as required by or pursuant to the terms of the Operative Agreements or made or effected in connection with or pursuant to the exercise of remedies under any Operative Agreement;
(3) to the extent attributable to the gross negligence or willful misconduct of such Indemnitee or any “Related Indemnitee” (as defined at the end of this Section 9.1(b)) (other than gross negligence or willful misconduct imputed to such Person solely by reason of its interest in the Aircraft or being party to any Operative Agreement);
(4) to the extent attributable to the incorrectness or breach inaccuracy of any representation or warranty of such Indemnitee or made by any Related Indemniteeother person in connection with the Proposed Sale, contained in or made pursuant to any Operative Agreement;
other than the Company (5) except to the extent attributable that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the failure Company as well as breach by such Indemnitee or any Related Indemnitee to perform or observe any express agreement, covenant, or condition on its part to be performed or observed in any Operative Agreement;
(6) to the extent attributable to the offer or sale by such Indemnitee or any Related Indemnitee stockholder of any interest in the Equipment Notes or its Commitment in violation of the registration requirements of the Securities Act or in violation of the registration requirements of any applicable state or foreign securities Laws (other than any thereof caused identical representations, warranties and covenants provided by acts or omissions of Borrowerall stockholders);
(7c) the liability for indemnification, if any, of such Stockholder in the Proposed Sale and for the inaccuracy of any representations and warranties made by the Company or its Stockholders in connection with such Proposed Sale, is several and not joint with any other person (except to the extent attributable that funds may be paid out of an escrow established to Security Agentcover breach of representations, warranties and covenants of the Company as well as breach by any stockholder of any of identical representations, warranties and covenants provided by all stockholders), and is pro rata in proportion to, and does not exceed, the amount of consideration paid to such Stockholder in connection with such Proposed Sale;
(d) liability shall be limited to such Stockholder’s failure applicable share (determined based on the respective proceeds payable to distribute funds each Stockholder) of a negotiated aggregate indemnification amount that applies equally to all Stockholders but that in no event exceeds the amount of consideration otherwise payable to such Stockholder in connection with such Proposed Sale, except with respect to claims related to fraud by such Stockholder, the liability for which need not be limited as to such Stockholder;
(e) upon the consummation of the Proposed Sale, (i) each holder of each class or series of the Company’s stock will receive the same form of consideration for their shares of such class or series as is received by other holders in respect of their shares of such same class or series of stock, (ii) each holder of a series of Preferred Stock will receive the same amount of consideration per share of such series of Preferred Stock as is received by other holders in respect of their shares of such same series, (iii) each holder of Common Stock will receive the same amount of consideration per share of Common Stock as is received by other holders in respect of their shares of Common Stock (and distributable each holder of Class B Common Stock will receive the same amount of consideration per share of Class B Common Stock as is received by it holders of Class A Common Stock per share of Class A Common Stock), and (iv) the aggregate consideration receivable by all holders of the Preferred Stock and Common Stock shall be allocated among the holders of Preferred Stock and Common Stock on the basis of the relative liquidation preferences and other payments to which the holders of each respective series of Preferred Stock and the holders of Common Stock are entitled in a Liquidation Transaction (assuming for this purpose that the Proposed Sale is a Liquidation Transaction) in accordance with the Operative AgreementsCompany’s Certificate of Incorporation in effect immediately prior to the Proposed Sale;
(8) other than during f) subject to clause (e) above, requiring the existence same form of an Event of Default, consideration to be available to the extent attributable holders of any single class or series of capital stock, if any holders of any capital stock of the Company are given an option as to the authorization or giving or withholding form and amount of any future amendments, supplements, waivers, or consents with respect consideration to any Operative Agreement, other than any requested by Borrower or required by or made pursuant to the terms of the Operative Agreements (unless such requirement results from the actions of an Indemnitee not required by or made pursuant to the Operative Agreements);
(9) to the extent attributable to any amount which any Indemnitee expressly agrees to pay or such Indemnitee expressly agrees shall not be paid by or be reimbursed by Borrower;
(10) to the extent that it is an ordinary and usual operating or overhead expense;
(11) for any Lien attributable to such Indemnitee or any Related Indemnitee that Borrower is not obligated to discharge under the Operative Agreements;
(12) if another provision of an Operative Agreement specifies the extent of Borrower’s responsibility or obligation with respect to such Expense, to the extent arising from a cause other than Borrower’s failure to comply with such specified responsibility or obligation; or
(13) to the extent imposed on an Indemnitee received as a result of any non-exempt “prohibited transaction” under 406(a) of ERISA or Section 4975(c)(1) of the Code caused by such Indemnitee. For purposes of this Section 9.1Proposed Sale, a Person shall be considered a “Related Indemnitee” of an Indemnitee if that Person is an Affiliate or employer all holders of such Indemniteecapital stock will be given the same option; provided, however, that nothing in this Subsection 3.3(f) shall entitle any holder to receive any form of consideration that such holder would be ineligible to receive as a director, officer, employee, agent, or servant result of such Indemnitee holder’s failure to satisfy any condition, requirement or any such Affiliatelimitation that is generally applicable to the Company’s stockholders.
Appears in 1 contract
Exceptions. Notwithstanding anything in Section 9.1(a)the foregoing, Borrower shall a Stockholder will not be required to indemnify, protect, defend or hold harmless comply with Subsection 3.2 above in connection with any Indemnitee pursuant to Section 9.1(aproposed Sale of the Company (the “Proposed Sale”) against any Expense of such Indemniteeunless:
(1a) for any Taxes representations and warranties to be made by such Stockholder in connection with the Proposed Sale are limited to representations and warranties related to authority, ownership and the ability to convey title to such Shares, including but not limited to representations and warranties that (i) the Stockholder holds all right, title and interest in and to the Shares such Stockholder purports to hold, free and clear of all liens and encumbrances, (ii) the obligations of the Stockholder in connection with the transaction have been duly authorized, if applicable, (iii) the documents to be entered into by the Stockholder have been duly executed by the Stockholder and delivered to the acquirer and are enforceable against the Stockholder in accordance with their respective terms and (iv) neither the execution and delivery of documents to be entered into in connection with the transaction, nor the performance of the Stockholder’s obligations thereunder, will cause a breach or a loss violation of Tax Benefitthe terms of any agreement, whether law or not Borrower is required to indemnify therefor pursuant to Section 9.3judgment, order or decree of any court or governmental agency;
(2b) to the extent attributable to any Transfer (voluntary or involuntary) by or on behalf of such Indemnitee of any Equipment Note, Commitment or interest therein, except Stockholder shall not be liable for reasonable out-of-pocket costs and expenses incurred as a result of any such Transfer requested in writing by Borrower or made or effected as required by or pursuant to the terms of the Operative Agreements or made or effected in connection with or pursuant to the exercise of remedies under any Operative Agreement;
(3) to the extent attributable to the gross negligence or willful misconduct of such Indemnitee or any “Related Indemnitee” (as defined at the end of this Section 9.1(b)) (other than gross negligence or willful misconduct imputed to such Person solely by reason of its interest in the Aircraft or being party to any Operative Agreement);
(4) to the extent attributable to the incorrectness or breach inaccuracy of any representation or warranty of such Indemnitee or made by any Related Indemniteeother Person in connection with the Proposed Sale, contained in or made pursuant to any Operative Agreement;
other than the Company (5) except to the extent attributable that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the failure Company as well as breach by such Indemnitee or any Related Indemnitee to perform or observe any express agreement, covenant, or condition on its part to be performed or observed in any Operative Agreement;
(6) to the extent attributable to the offer or sale by such Indemnitee or any Related Indemnitee stockholder of any interest in the Equipment Notes or its Commitment in violation of the registration requirements of the Securities Act or in violation of the registration requirements of any applicable state or foreign securities Laws (other than any thereof caused identical representations, warranties and covenants provided by acts or omissions of Borrowerall stockholders);
(7c) the liability for indemnification, if any, of such Stockholder in the Proposed Sale and for the inaccuracy of any representations and warranties made by the Company or its Stockholders in connection with such Proposed Sale, is several and not joint with any other Person (except to the extent attributable that funds may be paid out of an escrow established to Security Agentcover breach of representations, warranties and covenants of the Company as well as breach by any stockholder of any of identical representations, warranties and covenants provided by all stockholders), and subject to the provisions of the Restated Certificate related to the allocation of the escrow, is pro rata in proportion to, and does not exceed, the amount of consideration paid to such Stockholder in connection with such Proposed Sale;
(d) liability shall be limited to such Stockholder’s failure applicable share (determined based on the respective proceeds payable to distribute funds received and distributable by it each Stockholder in connection with such Proposed Sale in accordance with the Operative Agreementsprovisions of the Restated Certificate) of a negotiated aggregate indemnification amount that applies equally to all Stockholders but that in no event exceeds the amount of consideration otherwise payable to such Stockholder in connection with such Proposed Sale, except with respect to claims related to fraud by such Stockholder, the liability for which need not be limited as to such Stockholder;
(8) e) upon the consummation of the Proposed Sale, (i) each holder of each class or series of the Company’s stock will receive the same form of consideration for their shares of such class or series as is received by other than during holders in respect of their shares of such same class or series of stock, (ii) each holder of a series of Preferred Stock will receive the existence same amount of an consideration per share of such series of Preferred Stock as is received by other holders in respect of their shares of such same series, and (iii) each holder of Common Stock will receive the same amount of consideration per share of Common Stock as is received by other holders in respect of their shares of Common Stock, the aggregate consideration receivable by all holders of the Preferred Stock and Common Stock shall be allocated among the holders of Preferred Stock and Common Stock on the basis of the relative liquidation preferences to which the holders of each respective series of Preferred Stock and the holders of Common Stock are entitled in a Deemed Liquidation Event of Default, (assuming for this purpose that the Proposed Sale is a Deemed Liquidation Event) in accordance with the Restated Certificate in effect immediately prior to the extent attributable Proposed Sale; provided, however, that, notwithstanding the foregoing, if the consideration to be paid in exchange for the authorization Key Holder Shares or giving Investor Shares, as applicable, pursuant to this Subsection 3.3(e) includes any securities and due receipt thereof by any Key Holder or withholding Investor would require under applicable law (x) the registration or qualification of such securities or of any future amendments, supplements, waivers, person as a broker or consents with respect to any Operative Agreement, other than any requested by Borrower dealer or required by or made pursuant to the terms of the Operative Agreements (unless such requirement results from the actions of an Indemnitee not required by or made pursuant to the Operative Agreements);
(9) to the extent attributable to any amount which any Indemnitee expressly agrees to pay or such Indemnitee expressly agrees shall not be paid by or be reimbursed by Borrower;
(10) to the extent that it is an ordinary and usual operating or overhead expense;
(11) for any Lien attributable to such Indemnitee or any Related Indemnitee that Borrower is not obligated to discharge under the Operative Agreements;
(12) if another provision of an Operative Agreement specifies the extent of Borrower’s responsibility or obligation agent with respect to such Expensesecurities or (y) the provision to any Key Holder or Investor of any information other than such information as a prudent issuer would generally furnish in an offering made solely to “accredited investors” as defined in Regulation D promulgated under the Securities Act, the Company may cause to be paid to any such Key Holder or Investor in lieu thereof, against surrender of the Key Holder Shares or Investor Shares, as applicable, which would have otherwise been sold by such Key Holder or Investor, an amount in cash equal to the extent arising from a cause other than Borrower’s failure to comply with fair value (as determined in good faith by the Company) of the securities which such specified responsibility Key Holder or obligationInvestor would otherwise receive as of the date of the issuance of such securities in exchange for the Key Holder Shares or Investor Shares, as applicable; orand
(13f) subject to clause (e) above, requiring the same form of consideration to be available to the extent imposed on holders of any single class or series of capital stock, if any holders of any capital stock of the Company are given an Indemnitee option as to the form and amount of consideration to be received as a result of any non-exempt “prohibited transaction” under 406(a) of ERISA or Section 4975(c)(1) of the Code caused by such Indemnitee. For purposes of this Section 9.1Proposed Sale, a Person shall be considered a “Related Indemnitee” of an Indemnitee if that Person is an Affiliate or employer all holders of such Indemniteecapital stock will be given the same option; provided, however, that nothing in this Subsection 3.3(f) shall entitle any holder to receive any form of consideration that such holder would be ineligible to receive as a director, officer, employee, agent, or servant result of such Indemnitee holder’s failure to satisfy any condition, requirement or any such Affiliatelimitation that is generally applicable to the Company’s stockholders.
Appears in 1 contract
Sources: Voting Agreement (OvaScience, Inc.)
Exceptions. Notwithstanding anything (a) the transfer of the voting control of the Lessee by one direct or indirect subsidiary of Guarantor to another direct or indirect subsidiary of such corporation shall not constitute a change in Section 9.1(a)the control of the Lessee;
(b) the merger of the Lessee with or into, Borrower or the consolidation of the Lessee with, or the transfer of all or substantially all of the assets of the Lessee to, another direct or indirect subsidiary of Guarantor shall not constitute an assignment or transfer of the Premises or the Lease Agreement;
(c) so long as the obligations of the Lessee are guaranteed by Guarantor, a transaction that results in the diminution of the net worth of the Lessee shall not constitute an assignment or transfer of the Lease Agreement.
(d) the merger of Guarantor with or into, or the consolidation of Guarantor with, or the sale by Guarantor of all or substantially all of its assets to, another entity shall not require the consent of the Lessor, shall not constitute an assignment or transfer of the Lease Agreement and shall not constitute a default or event of default under the Lease Agreement so long as the successor, resulting or transferee entity enters into a guarantee of the Lessee's obligations under the Lease on substantially the same terms as the guaranty entered into by Guarantor attached hereto;
(e) the consent of the Lessor shall not be required with respect to the subleasing of any portion of the Premises by the Lessee to another direct or indirect subsidiary of Guarantor;
(f) Lessor shall not have the right to adjust the amount or the adjustment structure of the rent in connection with any assignment or subletting of the Premises;
(g) Lessee shall not be required to indemnify, protect, defend transfer or hold harmless any Indemnitee pursuant to Section 9.1(a) against any Expense of such Indemnitee:
(1) for any Taxes or a loss of Tax Benefit, whether or not Borrower is required to indemnify therefor pursuant to Section 9.3;
(2) assign to the extent attributable to any Transfer (voluntary or involuntary) by or on behalf of such Indemnitee of any Equipment Note, Commitment or interest therein, except for reasonable out-of-pocket costs and expenses incurred as a result of any such Transfer requested in writing by Borrower or made or effected as required by or pursuant to the terms of the Operative Agreements or made or effected in connection with or pursuant to the exercise of remedies under any Operative Agreement;
(3) to the extent attributable to the gross negligence or willful misconduct of such Indemnitee or any “Related Indemnitee” (as defined at the end of this Section 9.1(b)) (other than gross negligence or willful misconduct imputed to such Person solely by reason of Lessor its interest in any rentals or income from any sublease of all or part of the Aircraft or being party to any Operative Agreement);Premises; and
(4h) to the extent attributable to the incorrectness or breach of any representation or warranty of such Indemnitee or any Related Indemnitee, contained in or made pursuant to any Operative Agreement;
(5) to the extent attributable to the failure by such Indemnitee or any Related Indemnitee to perform or observe any express agreement, covenant, or condition on its part to be performed or observed in any Operative Agreement;
(6) to the extent attributable to the offer or sale by such Indemnitee or any Related Indemnitee of any interest in the Equipment Notes or its Commitment in violation of the registration requirements of the Securities Act or in violation of the registration requirements of any applicable state or foreign securities Laws (other than any thereof caused by acts or omissions of Borrower);
(7) to the extent attributable to Security Agent’s failure to distribute funds received and distributable by it in accordance with the Operative Agreements;
(8) other than during the existence of an Event of Default, to the extent attributable to the authorization or giving or withholding of any future amendments, supplements, waivers, or consents Option with respect to any Operative Agreement, other than any requested the Lease held by Borrower or required the Lessee may be exercised by or made pursuant to the terms of the Operative Agreements (unless such requirement results from the actions of an Indemnitee not required by or made pursuant to the Operative Agreements);
(9) to the extent attributable to any amount which any Indemnitee expressly agrees to pay or such Indemnitee expressly agrees shall not be paid by or be reimbursed by Borrower;
(10) to the extent that it is an ordinary and usual operating or overhead expense;
(11) for any Lien attributable to such Indemnitee Guarantor or any Related Indemnitee of its direct or indirect subsidiaries that Borrower is not obligated to discharge may then be the Lessee under the Operative Agreements;Lease Agreement.
(12) if another provision 10. Paragraph 16 entitled Tenancy Statement is hereby amended by the addition of an Operative Agreement specifies the extent of Borrower’s responsibility or obligation with respect to such Expensesubparagraph 16.3 thereto, to the extent arising from a cause other than Borrower’s failure to comply with such specified responsibility or obligation; or
(13) to the extent imposed on an Indemnitee reading as a result of any non-exempt “prohibited transaction” under 406(a) of ERISA or Section 4975(c)(1) of the Code caused by such Indemnitee. For purposes of this Section 9.1, a Person shall be considered a “Related Indemnitee” of an Indemnitee if that Person is an Affiliate or employer of such Indemnitee, a director, officer, employee, agent, or servant of such Indemnitee or any such Affiliate.follows:
Appears in 1 contract
Exceptions. Notwithstanding anything the provisions of Section 14(a) hereof, in Section 9.1(athe event of the Participant’s termination of employment with the Company or any of its subsidiaries prior to the Vesting Date (i) by the Company without “Cause” (as defined below), Borrower shall not be required to indemnify, protect, defend or hold harmless any Indemnitee pursuant to Section 9.1(a(ii) against any Expense of such Indemnitee:
(1) for any Taxes or a loss of Tax Benefit, whether or not Borrower is required to indemnify therefor pursuant to Section 9.3;
(2) to the extent attributable to any Transfer (voluntary or involuntary) by or on behalf of such Indemnitee of any Equipment Note, Commitment or interest therein, except for reasonable out-of-pocket costs and expenses incurred as a result of death or disability, or (iii) upon the Participant’s retirement from the Company with the consent of the Committee, the Participant shall be entitled to receive a payment in respect of the Awards on a prorated basis, based on the period of the Participant’s service with the Company and the performance levels achieved by the Company for the Performance Cycle as of the end of the fiscal quarter following the date of termination. For purposes hereof, the term “Cause” shall mean: (i) the Participant’s willful and continued failure to substantially perform the Participant’s duties to the Company or any subsidiaries of the Company; (ii) the Participant’s conviction of, or plea of guilty or nolo contendere to, a felony or other crime involving moral turpitude; (iii) the Participant’s engagement in any malfeasance or fraud or dishonesty of a substantial nature in connection with the Participant’s position with the Company or any of its subsidiaries, or other willful act that materially damages the reputation of the Company or any of its subsidiaries; (iv) the Participant’s breach of any restrictive covenants agreed to between the Participant and the Company or any subsidiaries of the Company; or (v) the sale, transfer or hypothecation by the Participant, prior to the payment in respect of the Award hereunder, of Common Shares in violation of the Share Ownership Guidelines. Notwithstanding the foregoing, the Participant’s employment will be treated as having been terminated without Cause under this Agreement in the event of any termination by the Company or any subsidiary of the Company without “cause” or by the Participant for “good reason,” as such Transfer requested terms or comparable terms are defined under any employment agreement in writing by Borrower effect from time to time between the Participant and the Company or made or effected any subsidiary of the Company. Except as required by or pursuant to amended and modified hereby, the terms of the Operative Agreements or made or effected Award Agreement shall remain in connection with or pursuant to the exercise of remedies under any Operative Agreement;
(3) to the extent attributable to the gross negligence or willful misconduct of such Indemnitee or any “Related Indemnitee” (as defined at the end of this Section 9.1(b)) (other than gross negligence or willful misconduct imputed to such Person solely by reason of its interest in the Aircraft or being party to any Operative Agreement);
(4) to the extent attributable to the incorrectness or breach of any representation or warranty of such Indemnitee or any Related Indemnitee, contained in or made pursuant to any Operative Agreement;
(5) to the extent attributable to the failure by such Indemnitee or any Related Indemnitee to perform or observe any express agreement, covenant, or condition on its part to be performed or observed in any Operative Agreement;
(6) to the extent attributable to the offer or sale by such Indemnitee or any Related Indemnitee of any interest in the Equipment Notes or its Commitment in violation of the registration requirements of the Securities Act or in violation of the registration requirements of any applicable state or foreign securities Laws (other than any thereof caused by acts or omissions of Borrower);
(7) to the extent attributable to Security Agent’s failure to distribute funds received full force and distributable by it in accordance with the Operative Agreements;
(8) other than during the existence of an Event of Default, to the extent attributable to the authorization or giving or withholding of any future amendments, supplements, waivers, or consents with respect to any Operative Agreement, other than any requested by Borrower or required by or made pursuant to the terms of the Operative Agreements (unless such requirement results from the actions of an Indemnitee not required by or made pursuant to the Operative Agreements);
(9) to the extent attributable to any amount which any Indemnitee expressly agrees to pay or such Indemnitee expressly agrees shall not be paid by or be reimbursed by Borrower;
(10) to the extent that it is an ordinary and usual operating or overhead expense;
(11) for any Lien attributable to such Indemnitee or any Related Indemnitee that Borrower is not obligated to discharge under the Operative Agreements;
(12) if another provision of an Operative Agreement specifies the extent of Borrower’s responsibility or obligation with respect to such Expense, to the extent arising from a cause other than Borrower’s failure to comply with such specified responsibility or obligation; or
(13) to the extent imposed on an Indemnitee as a result of any non-exempt “prohibited transaction” under 406(a) of ERISA or Section 4975(c)(1) of the Code caused by such Indemnitee. For purposes of this Section 9.1, a Person shall be considered a “Related Indemnitee” of an Indemnitee if that Person is an Affiliate or employer of such Indemnitee, a director, officer, employee, agent, or servant of such Indemnitee or any such Affiliateeffect.
Appears in 1 contract
Sources: Eip Award Agreement (Platinum Underwriters Holdings LTD)
Exceptions. Notwithstanding anything The indemnity provided for in Section 9.1(a), Borrower 9.01(a) shall not be required extend to indemnify, protect, defend or hold harmless any Indemnitee pursuant to Section 9.1(a) against any Expense of such Indemniteeany Indemnitee to the extent it:
(1i) would not have occurred but for the willful misconduct or gross negligence of such Indemnitee;
(ii) is in respect of the Aircraft, and is attributable to acts or events which occur after the Aircraft is no longer part of the Lessor's Estate or, if the Aircraft remains a part of the Lessor's Estate, after the expiration of the Term (unless the Aircraft is being returned at such time, in which case after return of physical possession; provided that if the Lessor has terminated the Lease pursuant to Article 17 thereof, the indemnity provided in Section 9.01(a) hereof shall survive for so long as Lessor shall be exercising remedies under such Article 17), or to acts or events which occur after return of possession of the Aircraft by the Lessee in accordance with the provisions of the Lease (subject to the foregoing proviso if the Lessor has terminated the Lease pursuant to Article 17 of the Lease) but in any Taxes such case only to the extent not fairly attributable to acts or omissions of the Lessee prior to expiration of the Term, including without limitation the Lessee's failure to fully discharge all of its obligations under the Lease, the other Operative Agreements or the Original Agreements;
(iii) is a loss of Tax BenefitTax, whether or not Borrower the Lessee is required to indemnify therefor pursuant to Section 9.3Article 8 hereof or pursuant to the Tax Indemnity Agreement;
(2iv) is a cost or expense required to be paid by the extent attributable Owner Participant or its permitted transferees (and not by the Lessee) pursuant to this Agreement or any Transfer (voluntary other Operative Agreement and for which the Lessee is not otherwise obligated to reimburse the Owner Participant, directly or involuntary) by or on behalf of such Indemnitee of any Equipment Note, Commitment or interest therein, except for reasonable out-of-pocket costs and expenses incurred as a result of any such Transfer requested in writing by Borrower or made or effected as required by or indirectly pursuant to the terms of the Operative Agreements this Agreement or made or effected in connection with or pursuant to the exercise of remedies under any such other Operative Agreement;
(3v) would not have been incurred by such Indemnitee if such Indemnitee had not been in breach of its representations or warranties, or had not defaulted in the observance and performance of the terms and provisions required to be observed and performed by it, in this Agreement, the Purchase Agreement Assignment, the Lease, the Indenture, the Trust Agreement, the Original Agreements or any other Operative Agreement to which it is a party unless such breach or default shall be a result of the breach or default by the Lessee of any of its obligations under the Operative Agreements or by another Indemnitee of any of the foregoing;
(vi) [Intentionally Left Blank];
(vii) is, in the case of the Owner Participant, Lessor's Liens to the extent attributable to the gross negligence or willful misconduct of such Indemnitee or any “Related Indemnitee” (as defined at the end of this Section 9.1(b)) (other than gross negligence or willful misconduct imputed to such Person solely by reason of its interest Owner Participant; in the Aircraft or being party to any Operative Agreement);
(4) case of the Owner Trustee, Lessor's Liens to the extent attributable to the incorrectness or breach Owner Trustee; in the case of any representation or warranty of such Indemnitee or any Related IndemniteeFSB, contained in or made pursuant to any Operative Agreement;
(5) Lessor's Liens to the extent attributable to FSB; and in the failure by such Indemnitee or any Related Indemnitee to perform or observe any express agreementcase of the Indenture Trustee, covenant, or condition on its part to be performed or observed in any Operative AgreementIndenture Trustee's Liens;
(6viii) to is, in the extent case of the Owner Participant or the Owner Trustee, attributable to the offer or sale by such Indemnitee or any Related Indemnitee after the Delivery Date of any interest in the Equipment Notes Aircraft, the Lessor's Estate or its Commitment the Trust Agreement or any similar interest (including an offer or sale resulting from bankruptcy or other proceedings for the relief of debtors in violation which such Indemnitee is the debtor), unless in each case such offer or sale shall occur (x) in connection with a Refinancing, (y) as a result of the registration requirements of the Securities Act or in violation of the registration requirements of any applicable state or foreign securities Laws (other than any thereof caused by acts or omissions of Borrower);
(7) to the extent attributable to Security Agent’s failure to distribute funds received and distributable by it in accordance with the Operative Agreements;
(8) other than during the existence occurrence of an Event of Default, to Default provided that either the extent attributable to Lease has been declared in default or the authorization or giving or withholding of any future amendments, supplements, waivers, or consents with respect to any Operative Agreement, other than any requested by Borrower or required by or made transfer is pursuant to the terms exercise of remedies under Article 17 of the Operative Agreements Lease or (unless such requirement results from z) in connection with the actions Lessee's exercise of an Indemnitee not required by its early termination option under Article 10 of the Lease or made pursuant to its purchase options under Article 4 of the Operative Agreements)Lease or in connection with Article 11 of the Lease;
(9ix) to the extent attributable to any amount which any Indemnitee expressly agrees to pay or such Indemnitee expressly agrees shall not be paid by or be reimbursed by Borrower;
(10) to the extent that it is an ordinary and usual operating Expense arising under or overhead expense;
(11) for in connection with any Lien attributable to such Indemnitee or any Related Indemnitee that Borrower is not obligated to discharge under the Operative Agreements;
(12) if another provision of an Operative Agreement specifies the extent of Borrower’s responsibility or obligation with respect to such Expense, to the extent arising from a cause other than Borrower’s failure to comply with such specified responsibility or obligation; or
(13) to the extent imposed on an Indemnitee as a result of any non-exempt “prohibited transaction” under 406(a) , within the meaning of Section 406 of ERISA or Section 4975(c)(1) of the Code caused by such Indemnitee. For purposes of this Section 9.1("Prohibited Transaction"); provided, however, that in the event any prohibited transaction arises which is not exempt under any class prohibited transaction exemption or any individual or statutory prohibited transaction exemption (individually or collectively, a Person "PTE") then the indemnity provided for herein shall be considered extend to any Expenses incurred by the Owner Participant (or any Affiliate thereof) as the result of any Prohibited Transaction arising out of the purchase or holding of any Certificates by an employee benefit plan subject to Title I of ERISA or by a “Related Indemnitee” plan subject to Section 4975 of the Code (individually or collectively, an Indemnitee if "ERISA Plan") with respect to which the Owner Participant is a party in interest, within the meaning of Section 3(14) of ERISA, or a disqualified person,within the meaning of Section 4975 of the Code, except, however, that Person is such Indemnity shall not extend to any Expenses incurred by the Owner Participant (or any Affiliate thereof) as the result of any Prohibited Transaction occurring with respect to the purchase or holding of any Certificates (A) over which purchase or holding the Owner Participant (or an Affiliate thereof) has discretion or employer control (other than in the capacity of such Indemniteea custodian, a director, officer, employee, agentdirected trustee or other similar nondiscretionary capacity), or servant of such Indemnitee (B) by an ERISA Plan with respect to which the Owner Participant (or any such AffiliateAffiliate thereof) is a "plan sponsor" within the meaning of Section 3(16)(B) of ERISA.
Appears in 1 contract
Exceptions. Notwithstanding anything in Section 9.1(a)Not withstanding the foregoing, Borrower shall a Stockholder will not be required to indemnify, protect, defend or hold harmless comply with Section 6.2 above in connection with any Indemnitee pursuant to Section 9.1(aproposed Sale of the Company (the “Proposed Sale”) against any Expense of such Indemniteeunless:
(1a) for any Taxes representations and warranties to be made by such Stockholder in connection with the Proposed Sale are limited to representations and warranties related to authority, ownership and the ability to convey title to such Shares, including but not limited to representations and warranties that (i) the Stockholder holds all right, title and interest in and to the Shares such Stockholder purports to hold, free and clear of all liens and encumbrances, (ii) the obligations of the Stockholder in connection with the transaction have been duly authorized, if applicable, (iii) the documents to be entered into by the Stockholder have been duly executed by the Stockholder and delivered to the acquirer and are enforceable against the Stockholder in accordance with their respective terms and (iv) neither the execution and delivery of documents to be entered into in connection with the transaction, nor the performance of the Stockholder’s obligations thereunder, will cause a breach or a loss violation of Tax Benefitthe terms of any agreement, whether law or not Borrower is required to indemnify therefor pursuant to Section 9.3judgment, order or decree of any court or governmental agency;
(2b) to the extent attributable to any Transfer (voluntary or involuntary) by or on behalf of such Indemnitee of any Equipment Note, Commitment or interest therein, except Stockholder shall not be liable for reasonable out-of-pocket costs and expenses incurred as a result of any such Transfer requested in writing by Borrower or made or effected as required by or pursuant to the terms of the Operative Agreements or made or effected in connection with or pursuant to the exercise of remedies under any Operative Agreement;
(3) to the extent attributable to the gross negligence or willful misconduct of such Indemnitee or any “Related Indemnitee” (as defined at the end of this Section 9.1(b)) (other than gross negligence or willful misconduct imputed to such Person solely by reason of its interest in the Aircraft or being party to any Operative Agreement);
(4) to the extent attributable to the incorrectness or breach inaccuracy of any representation or warranty of such Indemnitee or made by any Related Indemniteeother Person in connection with the Proposed Sale, contained in or made pursuant to any Operative Agreement;
other than the Company (5) except to the extent attributable that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the failure Company as well as breach by such Indemnitee or any Related Indemnitee to perform or observe any express agreement, covenant, or condition on its part to be performed or observed in any Operative Agreement;
(6) to the extent attributable to the offer or sale by such Indemnitee or any Related Indemnitee stockholder of any interest in the Equipment Notes or its Commitment in violation of the registration requirements of the Securities Act or in violation of the registration requirements of any applicable state or foreign securities Laws (other than any thereof caused identical representations, warranties and covenants provided by acts or omissions of Borrowerall stockholders);
(7c) the liability for indemnification, if any, of such Stockholder in the Proposed Sale and for the inaccuracy of any representations and warranties made by the Company in connection with such Proposed Sale, is several and not joint with any other Person (except to the extent attributable that funds may be paid out of an escrow established to Security Agent’s failure cover breach of representations, warranties and covenants of the Company as well as breach by any stockholder of any of identical representations, warranties and covenants provided by all stockholders), and is pro rata in proportion to distribute funds received and distributable by it the amount of consideration paid to such Stockholder in connection with such Proposed Sale (in accordance with the Operative Agreements;
(8) other than during the existence of an Event of Default, to the extent attributable to the authorization or giving or withholding of any future amendments, supplements, waivers, or consents with respect to any Operative Agreement, other than any requested by Borrower or required by or made pursuant to the terms provisions of the Operative Agreements (unless such requirement results from the actions of an Indemnitee not required by or made pursuant to the Operative AgreementsRestated Certificate);
(9d) liability shall be limited to such Stockholder’s applicable share (determined based on the extent attributable respective proceeds payable to any each Stockholder in connection with such Proposed Sale in accordance with the provisions of the Restated Certificate) of a negotiated aggregate indemnification amount that applies equally to all Stockholders but that in no event exceeds the amount of consideration otherwise payable to such Stockholder in connection with such Proposed Sale, except with respect to claims related to fraud by such Stockholder, the liability for which any Indemnitee expressly agrees to pay or such Indemnitee expressly agrees shall need not be paid by or be reimbursed by Borrowerlimited as to such Stockholder;
(10e) upon the consummation of the Proposed Sale, (i) each holder of each class or series of the Company’s stock will receive the same form of consideration for their shares of such class or series as is received by other holders in respect of their shares of such same class or series of stock, (ii) each holder of a series of Preferred Stock will receive the same amount of consideration per share of such series of Preferred Stock as is received by other holders in respect of their shares of such same series, (iii) each holder of Common Stock will receive the same amount of consideration per share of Common Stock as is received by other holders in respect of their shares of Common Stock, and (iv) unless the holders of at least fifty-five percent (55%) of the outstanding shares of Preferred Stock, voting together as a single class on an as-converted basis, elect otherwise by written notice given to the extent Company at least fifteen (15) days prior to the effective date of any such Proposed Sale, the aggregate consideration receivable by all holders of the Preferred Stock and Common Stock shall be allocated among the holders of Preferred Stock and Common Stock on the basis of the relative liquidation preferences to which the holders of each respective series of Preferred Stock and the holders of Common Stock are entitled in a Deemed Liquidation Event (assuming for this purpose that it the Proposed Sale is an ordinary and usual operating or overhead expense;a Deemed Liquidation Event) in accordance with the Company’s Certificate of Incorporation in effect immediately prior to the Proposed Sale; and
(11f) for any Lien attributable subject to such Indemnitee or any Related Indemnitee that Borrower is not obligated clause (e) above, requiring the same form of consideration to discharge under the Operative Agreements;
(12) if another provision of an Operative Agreement specifies the extent of Borrower’s responsibility or obligation with respect to such Expense, be available to the extent arising from a cause other than Borrower’s failure to comply with such specified responsibility holders of any single class or obligation; or
(13) series of capital stock, if any holders of any capital stock of the Company are given an option as to the extent imposed on an Indemnitee form and amount of consideration to be received as a result of any non-exempt “prohibited transaction” under 406(a) of ERISA or Section 4975(c)(1) of the Code caused by such Indemnitee. For purposes of this Section 9.1Proposed Sale, a Person shall be considered a “Related Indemnitee” of an Indemnitee if that Person is an Affiliate or employer all holders of such Indemnitee, a director, officer, employee, agent, or servant of such Indemnitee or any such Affiliatecapital stock will be given the same option.
Appears in 1 contract
Exceptions. Notwithstanding anything (a) Other than in respect to (i) a breach of Section 6.02(b) that also constitutes a breach of another subsection of Section 6.02 (ii) a breach or inaccuracy with respect to any of the Fundamental Representations, (iii) a breach or inaccuracy with respect to Section 3.08 (Taxes), or any other representation or warranty herein relating to Taxes, (iv) any claim of fraud or (v) to the extent set forth in Section 9.1(a6.07 (collectively, “Excluded Matters”), Borrower no Buyer Indemnitee shall be entitled to indemnification pursuant to Section 6.02(b) until the aggregate amount of all Losses which are indemnifiable pursuant to Section 6.02(b) exceeds Seventy Five Thousand Dollars ($75,000) (the “Basket”), in which event the Seller shall be required to pay or be liable for all such Losses from the first dollar up to the Cap.
(b) Seller’s aggregate liability under this Agreement with respect to claims for indemnification pursuant to Section 6.02(b) (except with respect to fraud, Taxes or Fundamental Representations) shall not exceed an amount equal to the “Cap” (as defined below). For purposes hereof, the “Cap” shall be equal to the Purchase Price.
(c) Other than in respect of fraud, Seller shall not be required to indemnifyindemnify any Buyer Indemnitee under this ARTICLE VI, protectincluding in respect to a breach or inaccuracy with respect to a Fundamental Representation, defend for any aggregate amount of Losses exceeding the Purchase Price.
(d) Except for fraud, Buyer shall not be liable to any Seller Indemnitee for indemnification under Section 6.03(b) until the aggregate amount of all Losses in respect of indemnification under Section 6.03(b) exceeds the Basket, in which event Buyer shall be liable for all such Losses back to the first dollar up to the Cap.
(e) Except for fraud and intentional misconduct, Buyer shall not be required to indemnify any Seller Indemnitee under this ARTICLE VI, for any aggregate amount of Losses exceeding the Purchase Price.
(f) Buyer and Seller shall take such steps to mitigate any Losses required by Delaware Law with respect to a claim for breach of contract after becoming aware of any event that could reasonably be expected to give rise to any Losses which are indemnifiable or hold harmless recoverable hereunder or in connection herewith.
(g) In the event any Indemnitee Buyer Indemnified Parties shall be entitled to indemnification pursuant to Section 9.1(a) against any Expense of such Indemnitee:
(1) for any Taxes or a loss of Tax Benefit, whether or not Borrower is required to indemnify therefor pursuant to Section 9.3;
(2) to the extent attributable to any Transfer (voluntary or involuntary) by or on behalf of such Indemnitee of any Equipment Note, Commitment or interest therein6.02, except for reasonable out-of-pocket costs and expenses incurred as a result of any such Transfer requested in writing by Borrower or made or effected as required by or pursuant with regard to the terms of the Operative Agreements or made or effected in connection with or pursuant to the exercise of remedies under any Operative Agreement;
(3) to the extent attributable to the gross negligence or willful misconduct of such Indemnitee or any “Related Indemnitee” (as defined at the end of this Section 9.1(b)) Excluded Matters (other than gross negligence or willful misconduct imputed to such Person solely by reason of its interest in the Aircraft or being party to any Operative Agreement);
clause (4) to the extent attributable to the incorrectness or breach of any representation or warranty of such Indemnitee or any Related Indemnitee, contained in or made pursuant to any Operative Agreement;
(5) to the extent attributable to the failure by such Indemnitee or any Related Indemnitee to perform or observe any express agreement, covenant, or condition on its part to be performed or observed in any Operative Agreement;
(6) to the extent attributable to the offer or sale by such Indemnitee or any Related Indemnitee of any interest in the Equipment Notes or its Commitment in violation of the registration requirements of the Securities Act or in violation of the registration requirements of any applicable state or foreign securities Laws (other than any thereof caused by acts or omissions of Borrower);
(7) to the extent attributable to Security Agent’s failure to distribute funds received and distributable by it in accordance with the Operative Agreements;
(8) other than during the existence of an Event of Default, to the extent attributable to the authorization or giving or withholding of any future amendments, supplements, waivers, or consents with respect to any Operative Agreement, other than any requested by Borrower or required by or made pursuant to the terms of the Operative Agreements (unless such requirement results from the actions of an Indemnitee not required by or made pursuant to the Operative Agreements);
(9) to the extent attributable to any amount which any Indemnitee expressly agrees to pay or such Indemnitee expressly agrees shall not be paid by or be reimbursed by Borrower;
(10) to the extent that it is an ordinary and usual operating or overhead expense;
(11) for any Lien attributable to such Indemnitee or any Related Indemnitee that Borrower is not obligated to discharge under the Operative Agreements;
(12) if another provision of an Operative Agreement specifies the extent of Borrower’s responsibility or obligation with respect to such Expense, to the extent arising from a cause other than Borrower’s failure to comply with such specified responsibility or obligation; or
(13) to the extent imposed on an Indemnitee as a result of any non-exempt “prohibited transaction” under 406(a) of ERISA or Section 4975(c)(1i) of the Code caused by definition thereof), Buyer shall first seek and exhaust all reasonably available remedies under the RWI Policy until such Indemnitee. For purposes of this Section 9.1, a Person shall be considered a “Related Indemnitee” of an Indemnitee if that Person is an Affiliate or employer of such Indemnitee, a director, officer, employee, agent, or servant of such Indemnitee or any such Affiliatetime as the policy limit set forth in the RWI Policy has been reached.
Appears in 1 contract
Sources: Asset Purchase Agreement (High Wire Networks, Inc.)
Exceptions. Notwithstanding anything The indemnity provided for in Section 9.1(a), Borrower 9.01(a) shall not be required extend to indemnify, protect, defend or hold harmless any Indemnitee pursuant to Section 9.1(a) against any Expense of such Indemniteeany Indemnitee to the extent it:
(1i) would not have occurred but for the willful misconduct or gross negligence of such Indemnitee;
(ii) in respect of the Aircraft, is attributable to acts or events which occur after the Aircraft is no longer part of the Lessor's Estate or leased under the Lease or, if the Aircraft remains a part of the Lessor's Estate, after the expiration of the Term (other than pursuant to Article 17 of the Lease, in which case the indemnity provided in Section 9.01(a) hereof shall survive for so long as Lessor shall be entitled to exercise remedies under such Article 17), or to acts or events which occur after return of possession of the Aircraft by the Lessee in accordance with the provisions of the Lease but in any Taxes such case only to the extent not fairly attributable to circumstances or events occurring prior to expiration of the Term, including without limitation the Lessee's failure to fully discharge all of its obligations under the Lease or the other Operative Agreements;
(iii) is a loss of Tax BenefitTax, whether or not Borrower the Lessee is required to indemnify therefor pursuant to Section 9.3;
(2) to the extent attributable to any Transfer (voluntary or involuntary) by or on behalf of such Indemnitee of any Equipment Note, Commitment or interest therein, except for reasonable out-of-pocket costs and expenses incurred as a result of any such Transfer requested in writing by Borrower or made or effected as required by Article 8 hereof or pursuant to the terms of the Operative Agreements or made or effected in connection with or pursuant to the exercise of remedies under any Operative Tax Indemnity Agreement;
(3iv) is a cost or expense required to be paid by the Owner Participant or its permitted transferees (and not by the Lessee) pursuant to this Agreement or any other Operative Agreement (other than the Owner Participant's obligations under Section 6.01 of the Trust Agreement) and for which the Lessee is not otherwise obligated to reimburse the Owner Participant, directly or indirectly;
(v) would not have been incurred by such Indemnitee if such Indemnitee had not been in breach of its representations or warranties, or had not defaulted in the observance and performance of the terms and provisions required to be observed and performed by it, in this Agreement, the Purchase Agreement Assignment, the Lease, the Indenture, the Trust Agreement or any other Operative Agreement to which it is a party unless such breach or default shall be a result of the breach or default of any of the foregoing by the Lessee or another Indemnitee;
(vi) is a payment required to be made by the Owner Participant pursuant to Section 3.02(b) hereof, but nothing contained in this Section 9.01(b)(vi) shall be deemed or construed to limit the obligations of the Lessee to the Indenture Trustee and Holders of the Certificates pursuant to Section 3.05 of the Lease;
(vii) is, in the case of the Owner Participant, Lessor's Liens to the extent attributable to the gross negligence or willful misconduct of such Indemnitee or any “Related Indemnitee” (as defined at the end of this Section 9.1(b)) (other than gross negligence or willful misconduct imputed to such Person solely by reason of its interest Owner Participant; in the Aircraft or being party to any Operative Agreement);
(4) case of the Owner Trustee, Lessor's Liens to the extent attributable to the incorrectness or breach Owner Trustee; and in the case of any representation or warranty of such Indemnitee or any Related Indemniteethe Indenture Trustee, contained in or made pursuant to any Operative AgreementIndenture Trustee's Liens;
(5viii) to is, in the extent attributable to case of the failure by such Indemnitee Owner Participant or any Related Indemnitee to perform or observe any express agreementthe Owner Trustee, covenant, or condition on its part to be performed or observed in any Operative Agreement;
(6) to the extent attributable to the offer or sale by such Indemnitee or any Related Indemnitee after the Certificate Closing Date of any interest in the Equipment Notes Aircraft, the Lessor's Estate or its Commitment the Trust Agreement or any similar interest (including an offer or sale resulting from bankruptcy or other proceedings for the relief of debtors in violation of the registration requirements of the Securities Act or in violation of the registration requirements of any applicable state or foreign securities Laws (other than any thereof caused by acts or omissions of Borrower);
(7) to the extent attributable to Security Agent’s failure to distribute funds received and distributable by it in accordance with the Operative Agreements;
(8) other than during the existence of an Event of Default, to the extent attributable to the authorization or giving or withholding of any future amendments, supplements, waivers, or consents with respect to any Operative Agreement, other than any requested by Borrower or required by or made pursuant to the terms of the Operative Agreements (unless such requirement results from the actions of an Indemnitee not required by or made pursuant to the Operative Agreements);
(9) to the extent attributable to any amount which any Indemnitee expressly agrees to pay or such Indemnitee expressly agrees is the debtor), unless in each case such offer or sale shall not be paid by occur (x) in connection with a Refinancing or be reimbursed by Borrower;
(10y) to the extent that it is an ordinary and usual operating or overhead expense;
(11) for any Lien attributable to such Indemnitee or any Related Indemnitee that Borrower is not obligated to discharge under the Operative Agreements;
(12) if another provision of an Operative Agreement specifies the extent of Borrower’s responsibility or obligation with respect to such Expense, to the extent arising from a cause other than Borrower’s failure to comply with such specified responsibility or obligation; or
(13) to the extent imposed on an Indemnitee as a result of exercise of remedies under Section 17 of the Lease; and
(ix) is incurred under or in connection with any non-exempt “prohibited transaction” under 406(a) , within the meaning of Section 406 of ERISA or Section 4975(c)(1) of the Code caused by such Indemnitee("Prohibited Transaction"); provided, however, that in the event Prohibited Transaction Exemption 89-88, appearing at 54 Fed. For purposes of this Section 9.1Reg. 42581 (1989), or any other comparable prohibited transaction exemption, (individually or collectively, a Person "PTE") is not valid or is not applicable in any respect to the purchase and holding of the Pass Through Certificates, then the indemnity provided for in Section 9.01(a) hereof shall be considered extend to any Expense incurred by the Owner Participant as the result of any Prohibited Transaction occurring with respect to the purchase or holding of any Pass Through Certificate by an employee benefit plan subject to Title I of ERISA or by a “Related Indemnitee” plan subject to Section 4975 of the Code (individually or collectively, an Indemnitee if that Person "ERISA Plan") with respect to which the Owner Participant is an Affiliate or employer a party in interest, within the meaning of such Indemnitee, a director, officer, employee, agentSection 3(14) of ERISA, or servant a disqualified person, within the meaning of Section 4975 of the Code, except, however, that such Indemnitee indemnity shall not extend to any Expense incurred by the Owner Participant as the result of any Prohibited Transaction occurring with respect to the purchase or holding of any Pass Through Certificate (A) over which purchase or holding the Owner Participant (or any Affiliate thereof) has discretion or control (other than in the capacity of a custodian, directed trustee or other similar nondiscretionary capacity), or (B) by an ERISA Plan with respect to which the Owner Participant (or any Affiliate thereof) is a "plan sponsor" within the meaning of Section 3(16)(B) of ERISA; and provided further, however, that in the event the PTE is not valid or applicable in any respect to the purchase and holding of the Pass Through Certificates and the Lessee had failed to obtain from the manager or co-manager of the underwriting syndicate of the Pass Through Certificates a representation that such Affiliate.manager or co-manager has a PTE, then the indemnity provided for in Section 9.01(a) hereof shall extend to any Expense incurred by the Owner Participant as the result of any Prohibited Transaction occurring with respect to the purchase or holding of any Pass Through Certificate by an ERISA Plan with respect to which the Owner Participant is a party in interest or a disqualified person, except, however, that such indemnity shall not extend to any Expense incurred by the Owner Participant as a result of any Prohibited Transaction occurring with respect to the purchase or holding of any Pass Through Certificates by an ERISA Plan with respect to which the Owner Participant (or any Affiliate thereof) is a "plan sponsor", within the meaning of Section 3(16)(B)
Appears in 1 contract
Exceptions. Notwithstanding anything in Section 9.1(a)the foregoing, Borrower shall a Stockholder will not be required to indemnify, protect, defend or hold harmless comply with Section 3.2 above in connection with any Indemnitee pursuant to Section 9.1(aproposed Sale of the Company (the “Proposed Sale”) against any Expense of such Indemniteeunless:
(1a) for any Taxes representations and warranties to be made by such Stockholder in connection with the Proposed Sale are limited to representations and warranties related to authority, ownership and the ability to convey title to such Shares, including but not limited to representations and warranties that (i) the Stockholder holds all right, title and interest in and to the Shares such Stockholder purports to hold, free and clear of all liens and encumbrances, (ii) the obligations of the Stockholder in connection with the transaction have been duly authorized, if applicable, (iii) the documents to be entered into by the Stockholder have been duly executed by the Stockholder and delivered to the acquirer and are enforceable against the Stockholder in accordance with their respective terms and (iv) neither the execution and delivery of documents to be entered into in connection with the transaction, nor the performance of the Stockholder’s obligations thereunder, will cause a breach or a loss violation of Tax Benefitthe terms of any agreement, whether law or not Borrower is required to indemnify therefor pursuant to Section 9.3judgment, order or decree of any court or governmental agency;
(2b) to the extent attributable to any Transfer (voluntary or involuntary) by or on behalf of such Indemnitee of any Equipment Note, Commitment or interest therein, except Stockholder shall not be liable for reasonable out-of-pocket costs and expenses incurred as a result of any such Transfer requested in writing by Borrower or made or effected as required by or pursuant to the terms of the Operative Agreements or made or effected in connection with or pursuant to the exercise of remedies under any Operative Agreement;
(3) to the extent attributable to the gross negligence or willful misconduct of such Indemnitee or any “Related Indemnitee” (as defined at the end of this Section 9.1(b)) (other than gross negligence or willful misconduct imputed to such Person solely by reason of its interest in the Aircraft or being party to any Operative Agreement);
(4) to the extent attributable to the incorrectness or breach inaccuracy of any representation or warranty of such Indemnitee or made by any Related Indemniteeother Person in connection with the Proposed Sale, contained in or made pursuant to any Operative Agreement;
other than the Company (5) except to the extent attributable that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the failure Company as well as breach by such Indemnitee or any Related Indemnitee to perform or observe any express agreement, covenant, or condition on its part to be performed or observed in any Operative Agreement;
(6) to the extent attributable to the offer or sale by such Indemnitee or any Related Indemnitee stockholder of any interest in the Equipment Notes or its Commitment in violation of the registration requirements of the Securities Act or in violation of the registration requirements of any applicable state or foreign securities Laws (other than any thereof caused identical representations, warranties and covenants provided by acts or omissions of Borrowerall stockholders);
(7c) the liability for indemnification, if any, of such Stockholder in the Proposed Sale and for the inaccuracy of any representations and warranties made by the Company in connection with such Proposed Sale, is several and not joint with any other Person (except to the extent attributable that funds may be paid out of an escrow established to Security Agent’s failure cover breach of representations, warranties and covenants of the Company as well as breach by any stockholder of any of identical representations, warranties and covenants provided by all stockholders), and is pro rata in proportion to distribute funds received and distributable by it the amount of consideration paid to such Stockholder in connection with such Proposed Sale (in accordance with the Operative Agreementsprovisions of the Company’s organizational documents;
(8) other than during d) liability shall be limited to such Stockholder’s applicable share (determined based on the existence respective proceeds payable to each Stockholder in connection with such Proposed Sale in accordance with the provisions of an Event the Company’s organizational documents) of Defaulta negotiated aggregate indemnification amount that applies equally to all Stockholders but that in no event exceeds the amount of consideration otherwise payable to such Stockholder in connection with such Proposed Sale, to the extent attributable to the authorization or giving or withholding of any future amendments, supplements, waivers, or consents except with respect to any Operative Agreementclaims related to fraud by such Stockholder, other than any requested by Borrower or required by or made pursuant the liability for which need not be limited as to the terms of the Operative Agreements (unless such requirement results from the actions of an Indemnitee not required by or made pursuant to the Operative Agreements)Stockholder;
(9e) upon the consummation of the Proposed Sale, (i) each holder of each class or series of the Company’s stock will receive the same form of consideration for their shares of such class or Series as is received by other holders in respect of their shares of such same class or series of stock, (ii) each holder of Series B Preferred Stock will receive the same amount of consideration per share of such Series B Preferred Stock as is received by other holders in respect of their shares of such same series, (iii) each holder of Common Stock will receive the same amount of consideration per share of Common Stock as is received by other holders in respect of their shares of Common Stock, and (iv) unless the holders of at least sixty percent (60%) of the Series B Preferred Stock elect otherwise by written notice given to the extent attributable Company at least five (5) days prior to the effective date of any amount such Proposed Sale, the aggregate consideration receivable by all holders of the Series B Preferred Stock and Common Stock shall be allocated among the holders of Series B Preferred Stock and Common Stock on the basis of the relative liquidation preferences to which any Indemnitee expressly agrees the holders of Series B Preferred Stock and the holders of Common Stock are entitled in a Deemed Liquidation Event (assuming for this purpose that the Proposed Sale is a Deemed Liquidation Event) in accordance with the Company’s organizational documents of Incorporation in effect immediately prior to pay or such Indemnitee expressly agrees shall not be paid by or be reimbursed by Borrower;the Proposed Sale; and
(10f) subject to clause (e) above, requiring the same form of consideration to be available to the extent that it is holders of any single class or series of capital stock, if any holders of any capital stock of the Company are given an ordinary and usual operating or overhead expense;
(11) for any Lien attributable to such Indemnitee or any Related Indemnitee that Borrower is not obligated to discharge under the Operative Agreements;
(12) if another provision of an Operative Agreement specifies the extent of Borrower’s responsibility or obligation with respect to such Expense, option as to the extent arising from a cause other than Borrower’s failure form and amount of consideration to comply with such specified responsibility or obligation; or
(13) to the extent imposed on an Indemnitee be received as a result of any non-exempt “prohibited transaction” under 406(a) of ERISA or Section 4975(c)(1) of the Code caused by such Indemnitee. For purposes of this Section 9.1Proposed Sale, a Person shall be considered a “Related Indemnitee” of an Indemnitee if that Person is an Affiliate or employer all holders of such Indemnitee, a director, officer, employee, agent, or servant of such Indemnitee or any such Affiliatecapital stock will be given the same option.
Appears in 1 contract
Sources: Stock Purchase Agreement (Planet Technologies, Inc)
Exceptions. Notwithstanding anything contained in Section 9.1(a)8.1.1, Borrower Owner shall not be required to indemnify, protect, defend or and hold harmless any Indemnitee pursuant to Section 9.1(a) against 8.1.1 in respect of any Expense of such Indemnitee:
(1a) for For any Taxes or a loss of Tax Benefitbenefit, whether or not Borrower Owner is required to indemnify therefor pursuant to Section 9.38.3;
(2b) Except to the extent attributable to acts or events occurring prior thereto, acts or events (other than acts or events related to the performance by Owner of its obligations pursuant to the terms of the Operative Agreements) that occur after the Security Agreements are required to be terminated in accordance with their terms; provided, that nothing in this clause (b) shall be deemed to exclude or limit any claim that any Indemnitee may have under applicable Law by reason of an Event of Default or for damages from Owner for breach of Owner’s covenants contained in the Operative Agreements or to release Owner from any of its obligations under the Operative Agreements that expressly provide for performance after termination of the Security Agreements;
(c) To the extent attributable to any Transfer (voluntary or involuntary) by or on behalf of such Indemnitee of any the Series B Equipment Note, Commitment Note or interest therein, except for reasonable out-of-pocket costs and expenses incurred as a result of any such Transfer requested in writing by Borrower or made or effected as required by or pursuant to the terms of the Operative Agreements or made or effected in connection with or pursuant to the exercise of remedies under any Operative Agreement;
(3d) to [Intentionally Omitted]
(e) To the extent attributable to the gross negligence or willful misconduct of such Indemnitee or any “Related Indemnitee” related Indemnitee (as defined at the end of this Section 9.1(b)below) (other than gross negligence or willful misconduct imputed to such Person solely person by reason of its interest in the Aircraft Collateral or being party to any Operative Agreement);
(4f) to [Intentionally Omitted]
(g) To the extent attributable to the incorrectness or breach of any representation or warranty of such Indemnitee or any Related Indemnitee, related Indemnitee contained in or made pursuant to any Operative Agreement or any Pass Through Agreement;
(5h) to To the extent attributable to the failure by such Indemnitee or any Related related Indemnitee to perform or observe any express agreement, covenant, covenant or condition on its part to be performed or observed in any Operative Agreement or any Pass Through Agreement;
(6i) to To the extent attributable to the offer or sale by such Indemnitee or any Related related Indemnitee of any interest in the Collateral, the Series B Equipment Notes Note, the Pass Through Certificates, or its Commitment any similar interest, in violation of the registration requirements of the Securities Act or in violation of the registration requirements of any other applicable federal, state or foreign securities Laws (other than any thereof caused by acts or omissions of Borrowerthe Owner);
(7i) With respect to any Indemnitee (other than Mortgagee), to the extent attributable to Security Agent’s the failure of the Mortgagee to distribute funds received and distributable by it in accordance with the Operative Security Agreements, (ii) with respect to any Indemnitee (other than the Subordination Agent), to the extent attributable to the failure of the Subordination Agent to distribute funds received and distributable by it in accordance with the Intercreditor Agreement, (iii) with respect to any Indemnitee (other than the Pass Through Trustees), to the extent attributable to the failure of a Pass Through Trustee to distribute funds received and distributable by it in accordance with the Pass Through Trust Agreements, (iv) with respect to Mortgagee, to the extent attributable to the negligence or willful misconduct of Mortgagee in the distribution of funds received and distributable by it in accordance with the Security Agreements, (v) with respect to the Subordination Agent, to the extent attributable to the negligence or willful misconduct of the Subordination Agent in the distribution of funds received and distributable by it in accordance with the Intercreditor Agreement, and (vi) with respect to the Pass Through Trustees, to the extent attributable to the negligence or willful misconduct of a Pass Through Trustee in the distribution of funds received and distributable by it in accordance with the Pass Through Trust Agreements;
(8) other k) Other than during the existence continuation of an Event of Default, to the extent attributable to the authorization or giving or withholding of any future amendments, supplements, waivers, waivers or consents with respect to any Operative Agreement, Agreement or Pass Through Agreement other than any such as have been requested by Borrower Owner or as are required by or made pursuant to the terms of the Operative Agreements or Pass Through Agreements (unless such requirement results from the actions of an Indemnitee not required by or made pursuant to the Operative Agreements or the Pass Through Agreements);
(9l) to To the extent attributable to any amount which any Indemnitee expressly agrees to pay or such Indemnitee expressly agrees shall not be paid by or be reimbursed by BorrowerOwner;
(10m) to To the extent that it is an ordinary and usual operating or overhead expense;
(11n) for [Intentionally Omitted]
(o) For any Lien attributable to such Indemnitee or any Related Indemnitee that Borrower is not obligated to discharge under the Operative Agreementsrelated Indemnitee;
(12p) if If another provision of an Operative Agreement or a Pass Through Agreement specifies the extent of BorrowerOwner’s responsibility or obligation with respect to such Expense, to the extent arising from a cause other than Borrower’s failure of Owner to comply with such specified responsibility or obligation; or
(13q) to To the extent imposed on incurred by or asserted against an Indemnitee as a result of any non-exempt “prohibited transaction” under 406(a) ”, within the meaning of Section 406 of ERISA or Section 4975(c)(1) of the Code caused by such IndemniteeCode. For purposes of this Section 9.18.1, a Person shall be considered a “Related Indemniteerelated” of Indemnitee with respect to an Indemnitee if that such Person is an Affiliate or employer of such Indemnitee, a director, officer, employee, agent, or servant of such Indemnitee or any such AffiliateAffiliate or a successor or permitted assignee of any of the foregoing.
Appears in 1 contract
Exceptions. Notwithstanding anything in Section 9.1(a)Any other provision herein to the contrary notwithstanding, Borrower the Company shall not be required obligated under the Agreement to indemnify, protect, defend or hold harmless any Indemnitee pursuant to Section 9.1(a) against any Expense of such indemnify Indemnitee:
i. For Losses incurred in connection with Proceedings initiated or brought voluntarily by the Indemnitee and not by way of compulsory counterclaim, except (1x) as contemplated by Section 3(b), (y) in specific cases if the Board has approved the initiation or bringing of such Proceeding, and (z) as may be required by law.
ii. For an accounting of profits arising from the purchase and sale by the Indemnitee of securities within the meaning of Section 16(b) of the Securities Exchange Act of 1934, as amended, or any similar successor statute.
iii. For remuneration paid to Indemnitee if it is determined by final judgment or other final adjudication that such remuneration was in violation of law (and, in this respect, both the Company and Indemnitee have been advised that the Securities and Exchange Commission believes that indemnification for any Taxes liabilities arising under the federal securities laws is against public policy and is, therefore, unenforceable and that claims for indemnification should be submitted to appropriate courts for adjudication, as indicated in Section 3(e)(vi) below).
iv. For a final judgment or a loss of Tax Benefitother final adjudication that Indemnitee’s conduct was in bad faith, whether knowingly fraudulent or not Borrower is required to indemnify therefor pursuant to Section 9.3;
deliberately dishonest or constituted willful misconduct (2) but only to the extent attributable of such specific determination).
v. For conduct constituting a breach of Indemnitee’s duty of loyalty to the Company or resulting in any Transfer personal profit or advantage to which Indemnitee is not legally entitled.
vi. In violation of any undertaking appearing in and required by the rules and regulations promulgated under the Securities Act of 1933, as amended (voluntary the “Act”), or involuntaryin any registration statement filed with the SEC under the Act (Indemnitee acknowledges that paragraph (h) of Item 512 of Regulation S-K currently generally requires the Company to undertake in connection with any registration statement filed under the Act to submit the issue of the enforceability of Indemnitee’s rights under this Agreement in connection with any liability under the Act on public policy grounds to a court of appropriate jurisdiction and to be governed by any final adjudication of such issue. Indemnitee specifically agrees that any such undertaking shall supersede the provisions of this Agreement and to be bound by any such undertaking).
vii. On account of any reimbursement of the Company by Indemnitee of any bonus or other incentive-based or equity-based compensation under any bona fide clawback policy of the Company or as otherwise required under federal securities laws, including but not limited to the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 and the ▇▇▇▇-▇▇▇▇▇ ▇▇▇▇ Street Reform and Consumer Protection Act.
viii. For any amounts which payment has actually been made to or on behalf of such Indemnitee of any Equipment Note, Commitment or interest therein, except for reasonable out-of-pocket costs and expenses incurred as a result of any such Transfer requested in writing by Borrower or made or effected as required by or pursuant to the terms of the Operative Agreements or made or effected in connection with or pursuant to the exercise of remedies under any Operative Agreement;
(3) to the extent attributable to the gross negligence insurance policy or willful misconduct of such Indemnitee or any “Related Indemnitee” (as defined at the end of this Section 9.1(b)) (other than gross negligence or willful misconduct imputed to such Person solely by reason of its interest in the Aircraft or being party to any Operative Agreement);
(4) to the extent attributable to the incorrectness or breach of any representation or warranty of such Indemnitee or any Related Indemniteeindemnity provision, contained in or made pursuant to any Operative Agreement;
(5) to the extent attributable to the failure by such Indemnitee or any Related Indemnitee to perform or observe any express agreement, covenant, or condition on its part to be performed or observed in any Operative Agreement;
(6) to the extent attributable to the offer or sale by such Indemnitee or any Related Indemnitee of any interest in the Equipment Notes or its Commitment in violation of the registration requirements of the Securities Act or in violation of the registration requirements of any applicable state or foreign securities Laws (other than any thereof caused by acts or omissions of Borrower);
(7) to the extent attributable to Security Agent’s failure to distribute funds received and distributable by it in accordance with the Operative Agreements;
(8) other than during the existence of an Event of Default, to the extent attributable to the authorization or giving or withholding of any future amendments, supplements, waivers, or consents expect with respect to any Operative Agreement, other than excess beyond the amount paid under any requested by Borrower insurance policy or required by or made pursuant to the terms of the Operative Agreements (unless such requirement results from the actions of an Indemnitee not required by or made pursuant to the Operative Agreements);
(9) to the extent attributable to any amount which any Indemnitee expressly agrees to pay or such Indemnitee expressly agrees shall not be paid by or be reimbursed by Borrower;
(10) to the extent that it is an ordinary and usual operating or overhead expense;
(11) for any Lien attributable to such Indemnitee or any Related Indemnitee that Borrower is not obligated to discharge under the Operative Agreements;
(12) if another provision of an Operative Agreement specifies the extent of Borrower’s responsibility or obligation with respect to such Expense, to the extent arising from a cause other than Borrower’s failure to comply with such specified responsibility or obligation; or
(13) to the extent imposed on an Indemnitee as a result of any non-exempt “prohibited transaction” under 406(a) of ERISA or Section 4975(c)(1) of the Code caused by such Indemnitee. For purposes of this Section 9.1, a Person shall be considered a “Related Indemnitee” of an Indemnitee if that Person is an Affiliate or employer of such Indemnitee, a director, officer, employee, agent, or servant of such Indemnitee or any such Affiliateindemnity policy.
Appears in 1 contract
Exceptions. Notwithstanding anything in Section 9.1(a)the foregoing, Borrower shall a Stockholder will not be required to indemnify, protect, defend or hold harmless comply with Subsection 3.2 above in connection with any Indemnitee pursuant to Section 9.1(aproposed Sale of the Company (the “Proposed Sale”) against any Expense of such Indemniteeunless:
(1a) for any Taxes representations and warranties to be made by such Stockholder in connection with the Proposed Sale are limited to representations and warranties related to authority, ownership and the ability to convey title to such Shares, including but not limited to representations and warranties that (i) the Stockholder holds all right, title and interest in and to the Shares such Stockholder purports to hold, free and clear of all liens and encumbrances, (ii) the obligations of the Stockholder in connection with the transaction have been duly authorized, if applicable, (iii) the documents to be entered into by the Stockholder have been duly executed by the Stockholder and delivered to the acquirer and are enforceable against the Stockholder in accordance with their respective terms and (iv) neither the execution and delivery of documents to be entered into in connection with the transaction, nor the performance of the Stockholder’s obligations thereunder, will cause a breach or a loss violation of Tax Benefitthe terms of any agreement, whether law or not Borrower is required to indemnify therefor pursuant to Section 9.3judgment, order or decree of any court or governmental agency;
(2b) to the extent attributable to any Transfer (voluntary or involuntary) by or on behalf of such Indemnitee of any Equipment Note, Commitment or interest therein, except Stockholder shall not be liable for reasonable out-of-pocket costs and expenses incurred as a result of any such Transfer requested in writing by Borrower or made or effected as required by or pursuant to the terms of the Operative Agreements or made or effected in connection with or pursuant to the exercise of remedies under any Operative Agreement;
(3) to the extent attributable to the gross negligence or willful misconduct of such Indemnitee or any “Related Indemnitee” (as defined at the end of this Section 9.1(b)) (other than gross negligence or willful misconduct imputed to such Person solely by reason of its interest in the Aircraft or being party to any Operative Agreement);
(4) to the extent attributable to the incorrectness or breach inaccuracy of any representation or warranty of such Indemnitee or made by any Related Indemniteeother Person in connection with the Proposed Sale, contained in or made pursuant to any Operative Agreement;
other than the Company (5) except to the extent attributable that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the failure Company as well as breach by such Indemnitee or any Related Indemnitee to perform or observe any express agreement, covenant, or condition on its part to be performed or observed in any Operative Agreement;
(6) to the extent attributable to the offer or sale by such Indemnitee or any Related Indemnitee stockholder of any interest in the Equipment Notes or its Commitment in violation of the registration requirements of the Securities Act or in violation of the registration requirements of any applicable state or foreign securities Laws (other than any thereof caused identical representations, warranties and covenants provided by acts or omissions of Borrowerall stockholders);
(7c) the liability for indemnification, if any, of such Stockholder in the Proposed Sale and for the inaccuracy of any representations and warranties made by the Company or its Stockholders in connection with such Proposed Sale, is several and not joint with any other Person (except to the extent attributable that funds may be paid out of an escrow established to Security Agent’s failure cover breach of representations, warranties and covenants of the Company as well as breach by any stockholder of any of identical representations, warranties and covenants provided by all stockholders), and, subject to distribute funds received the provisions of the Restated Certificate related to the allocation of the escrow, is pro rata in proportion to, and distributable by it does not exceed, the amount of consideration paid to such Stockholder in connection with such Proposed Sale (in accordance with the Operative Agreements;
(8) other than during the existence of an Event of Default, to the extent attributable to the authorization or giving or withholding of any future amendments, supplements, waivers, or consents with respect to any Operative Agreement, other than any requested by Borrower or required by or made pursuant to the terms provisions of the Operative Agreements (unless such requirement results from the actions of an Indemnitee not required by or made pursuant to the Operative AgreementsRestated Certificate);
(9d) upon the consummation of the Proposed Sale, (i) each holder of each class or series of the Company’s stock will receive the same form of consideration for their shares of such class or series as is received by other holders in respect of their shares of such same class or series of stock, (ii) each holder of a series of Preferred Stock will receive the same amount of consideration per share of such series of Preferred Stock as is received by other holders in respect of their shares of such same series, (iii) each holder of Common Stock will receive the same amount of consideration per share of Common Stock as is received by other holders in respect of their shares of Common Stock, and (iv) unless the holders of shares of ABC Preferred Stock representing at least sixty percent (60%) of voting power of the ABC Preferred Stock elect to receive a lesser amount by written notice given to the extent attributable to any amount which any Indemnitee expressly agrees to pay or such Indemnitee expressly agrees shall not be paid by or be reimbursed by Borrower;
Company at least ten (10) days prior to the extent effective date of any such Proposed Sale, the aggregate consideration receivable by all holders of the Preferred Stock and Common Stock shall be allocated among the holders of Preferred Stock and Common Stock on the basis of the relative liquidation preferences to which the holders of each respective series of Preferred Stock and the holders of Common Stock are entitled in a Deemed Liquidation Event (assuming for this purpose that it the Proposed Sale is an ordinary a Deemed Liquidation Event) in accordance with the Company’s Certificate of Incorporation in effect immediately prior to the Proposed Sale; provided, however, that, notwithstanding the foregoing, if the consideration to be paid in exchange for the Key Holder Shares or Investor Shares, as applicable, pursuant to this Subsection 3.3(d) includes any securities and usual operating due receipt thereof by any Key Holder or overhead expense;
Investor would require under applicable law (11x) for the registration or qualification of such securities or of any Lien attributable to such Indemnitee person as a broker or any Related Indemnitee that Borrower is not obligated to discharge under the Operative Agreements;
(12) if another provision of an Operative Agreement specifies the extent of Borrower’s responsibility dealer or obligation agent with respect to such Expensesecurities or (y) the provision to any Key Holder or Investor of any information other than such information as a prudent issuer would generally furnish in an offering made solely to “accredited investors” as defined in Regulation D promulgated under the Securities Act, the Company may cause to be paid to any such Key Holder or Investor in lieu thereof, against surrender of the Key Holder Shares or Investor Shares, as applicable, which would have otherwise been sold by such Key Holder or Investor, an amount in cash equal to the extent arising from a cause other than Borrower’s failure to comply with fair value (as determined in good faith by the Company) of the securities which such specified responsibility Key Holder or obligationInvestor would otherwise receive as of the date of the issuance of such securities in exchange for the Key Holder Shares or Investor Shares, as applicable; orand
(13e) subject to clause (d) above, requiring the same form of consideration to be available to the extent imposed on holders of any single class or series of capital stock, if any holders of any single class or series of capital stock of the Company are given an Indemnitee option as to the form and amount of consideration to be received as a result of any non-exempt “prohibited transaction” under 406(a) of ERISA or Section 4975(c)(1) of the Code caused by such Indemnitee. For purposes of this Section 9.1Proposed Sale, a Person shall be considered a “Related Indemnitee” of an Indemnitee if that Person is an Affiliate or employer all holders of such Indemniteeclass or series of capital stock will be given the same option; provided, however, that nothing in this Subsection 3.3(e) shall entitle any holder to receive any form of consideration that such holder would be ineligible to receive as a director, officer, employee, agent, or servant result of such Indemnitee holder’s failure to satisfy any condition, requirement or any such Affiliatelimitation that is generally applicable to the Company’s stockholders.
Appears in 1 contract
Sources: Series D Preferred Stock Purchase Agreement (Seres Therapeutics, Inc.)